State Consumer Disputes Redressal Commission
Shri Vilas Gosai Niranjan vs Ku.Nita Rohidas Ramteke. on 6 May, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASHTRA NAGPUR CIRCUIT BENCH NAGPUR First Appeal No. A/09/483 (Arisen out of Order Dated 12/06/2009 in Case No. First Appeal No. CC/09/11 of District State Commission) 1. Shri Vilas Gosai Niranjan SISTER COLONY NEAR HANUMAN MANDIR NAGINABAG CHANDRAPUR ...........Appellant(s) Versus 1. Ku.Nita Rohidas Ramteke. RINA APARTMENT WADGAON ROAD LAXMINAGAR CHANDRAPUR ...........Respondent(s) BEFORE: HON'BLE MR. B.A.SHAIKH PRESIDING MEMBER HON'BLE MRS. Jayshree Yengal MEMBER For the Appellant: Adv. Mr.Kullarwar For the Respondent: Adv. Mr. Kasture Dated : 06 May 2017 Final Order / Judgement (Delivered on 06/05/2017) Per Smt. Jayshree Yengal, Hon'ble Member
This appeal challenges the order dated 12/06/2009, passed by the District Consumer Forum, Chandrapur partly allowing the consumer complaint bearing No. 11/2009 and thereby directing the opposite party ( for short OP) to make a sturdy cover to the overhead water tank, to properly do the wiring from the meter till the flat and to build a three feet long slab over the drain canal between the road and the building and the OP to pay Rs. 10,000/- and Rs. 5,000/- to the complainant as compensation for physical and mental harassment and cost of proceeding respectively.
Respondent Ku. Neeta Rohidas Ramteke is referred as complainant and appellant Mr. Vilas Gosai Niranjane is referred as OP, for the sake of convenience.
Facts in brief as set out by the complainant in her complaint are as under.
Complainant Ku. Neeta Rohidas Ramteke intended to purchase a flat. The OP Mr. Vilas Gosai Niranjane being Builder and Developer under housing schem was constructing a building in the name and style as 'Reena Apartment' comprising of apartments for sale. The complainant booked a flat bearing No. F-1 on the first floor of the said building. Both the parties executed an agreement on 15/06/2004 to building construction. A sale deed was also executed on the same day for undivided 1/6 th shares on the land. Both the parties executed an agreement for building construction for a consideration of Rs. 4,40,000/- It is a contention of the complainant that the OP had agreed to build a wall compound and a small bridge over the drain canal (Nali) and a big iron gate and also execute a sale-deed for the undivided share of the land. The complainant paid total consideration of Rs. 4,45,930/- by cash and cheque as over the period from 2/12/2003 to 15/03/2008 as mentioned in the complaint. It is further contended by the complainant that the OP issued a receipt for Rs. 1,40,000/- and also assured to complete the construction within the stipulated time. The complainant had applied for loan of Rs. 3,00,000/- from Industrial estate Branch of State Bank of India, Chandrpur. However only Rs. 2,00,000/- were sanctioned by the bank towards the loan as the OP did not complete the construction within the stipulated time and also failed to give the possession letter in time.
The OP executed registered sale-deed on 15/06/2004 in favour of the complainant as per her insistence. Although the OP had still not completed the construction, the complainant handed over the cheque bearing No. 615626, dated 6/7/2004 for an amount of Rs. 2,00,000/-. The OP also issued a receipt of the same. The complainant paid Rs. 4,40,000/- as per the terms and condition of the agreement dated 15/6/2004 executed between the parties. The complainant and her husband repeatedly requested the OP to complete the construction. However, the OP persistently demanded money from the complainant, although the complainant had paid the full amount by 15/03/2008. The OP handed over the possession of the flat with incomplete construction work.
It is further contended by the complainant that the OP intentionally avoided to complete the construction as agreed in the agreement dated 15/06/2004. As per the said agreement, the OP had agreed to build a compound wall with a big iron gate and a bridge over the drain canal (Nali), flooring in the parking area, and electric fitting with main switch. The OP however failed to do the aforesaid work . The complainant was compelled to use the impure water from the water tank as the OP did not put a cover on the water tank. It is the contention of the complainant that although she had paid the full amount of consideration the OP did not complete the construction work as agreed.
Therefore complainant issued a legal notice on 27/10/2008. The said notice however was returned unserved with postal endorsement 'Addressee not Available, Returned to Sender' The complainant reissued notice on 10/11/2008 to the OP. The OP did not take cognizance of the same. Therefore alleging deficiency in service, the complainant filed a consumer complaint and sought for completion of construction of the flat as agreed in the agreement and the OP to pay Rs. 50000/- as compensation for mental and physical harassment and Rs. 5000/- towards cost of proceeding.
The OP Mr. Vilas Niranjane resisted the complaint by filing his written version and denied all the adverse allegation of the complainant. The OP sought for dismissal of complaint by raising the preliminary objection that the complaint is time barred as per the submission of the complainant, the agreement was executed between the parties on 15/06/2004 and the possession was handed over to the complainant in May 2005. The complaint was filed in the year 2009.
The Forum after hearing both the parties and perusing the documents on record has partly allowed the complaint as aforesaid.
The Forum has specifically held that the OP has rendered deficient service by not providing the basic amenities of electric wiring , cover or the overhead water tank and a slab for approach road to the building.
Being aggrieved by the order the OP has challenged the same in this appeal mainly on the ground that the appellant has never admitted that it would provide cover to the overhead water tank and that the water stored in it would be use as drinking water. The directions issued by the Forum are not in accordance with the terms and conditions of agreement executed between both the parties.
We heard counsel for both the sides and perused the written notes of arguments filed by both the parties. We also perused copies of the complaint, written version and documents. We considered the evidence brought on record by both the parties.
We find that complaint cannot be said to be time barred even if the possession is handed over to the complainant in the year 2005 and the complaint is filed in the year 2009. When the dispute in respect of the facilities being given by the builder to the complainant, it becomes a continuous cause of action till the facilities are provided or the construction is completed.
We perused the report dated 2/4/2009 of a Civil Engineer one Mr. Haridas Tonge. The said report categorically mentions the short comings or incomplete work in respect of the electric fitting, cover over the overhead water tank and approach road over the drain (Nali) in front of the grill gate.
We also perused the certificate dated 31/01/2009 issued by the bank which has sanctioned the loan of Rs. 2,00,000/- to the complainant . In the said certificate, it is specifically recorded as ' Completion certificate yet not received.' The only inference that can be drawn from the aforesaid documents is that the construction is not complete. It need not be specifically mentioned in the agreement. However to provide basic facilities and complete the construction work is the boundan duty of the builder which he is liable to perform. The decision in the case of Ranvir Singh Vs. Uttar Pradesh Awas and Vikas Parishad relied on by learned advocate of appellant as reported in II (2014) CPJ 175 (NC) is not applicable to present case since in that case no notice for removing deficiencies in construction was given after taking possession, whereas in the present case said notice was given by complainant to appellant and since in present case deficiency in construction is also proved by complainant, as observed above.
For the foregoing reason, we find no infirmity or illegality in the impugned order and the appeal deserves to be dismissed being devoid of merits. In the result, we pass the following order.
ORDER The appeal is dismissed.
The impugned order dated 12/06/2009, passed by the District Consumer Forum, Chandrapur, in consumer complaint bearing No. 11/2009 is confirmed.
No order as to cost in appeal.
Copy of order be furnished to both the parties, free of cost.
[HON'BLE MR. B.A.SHAIKH] PRESIDING MEMBER [HON'BLE MRS. Jayshree Yengal] MEMBER