National Consumer Disputes Redressal
Dr. Gopal & Anr. vs Deorao Ganpat Kaore & 4 Ors. on 11 December, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1915 OF 2015 (Against the Order dated 27/08/2014 in Appeal No. 612/2008 of the State Commission Maharastra) 1. DR. GOPAL & ANR. S/O RANILALJI BHUTADA R/O TENEMENT NO. 56 A, INDIRADEVI TOWN, MIDDLE RING ROAD, WATHODA, NAGPUR-440024 2. DR.(MRS) JASMINE GOPAL BHUTADA BHUTADA R/O TENEMENT NO. 56 A, INDIRADEVI TOWN, MIDDLE RINGROAD, WATHODA, NAGPUR-440024 ...........Petitioner(s) Versus 1. DEORAO GANPAT KAORE & 4 ORS. SADBHAVNANAGR, DARSHAN COLONY, NAGPUR-440024 2. SMT.SUSHILA W/O SHRIRAL @ SHIVRAMJI KAODE,R/O SADBHAVNANAGR, DARSHAN COLONY, NAGPUR-440024 3. 3.SARJU CONSTRUCTION PRIVATE LIMITED, THROUGH ITS DIRECTOR PRAVIN S/O MAYABHAI PATEL, RISHABH APARTMENT, AZAMSHAH LAYOUT, GANESHNAGARM GREAT NAG ROAD, NAGPUR-440009 4. PRAVIN S/O MAYABHAI PATEL R/O 45,INDIRADEVI TOWN, MIDDLE RINGROAD, WATHODA, NAGPUR-440024 5. KAMLESH S/O PRANLAL SHAH R/O 46,INDIRADEVI TOWN, MIDDLE RINGROAD, WATHODA, NAGPUR-440024 ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE V.K. JAIN, PRESIDING MEMBER
For the Petitioner : Dr. Gopal R. Bhutada in person For the Respondent : For Respondents No. 1 to 2
in RP/1915/2015
: NEMO
For Respondents No. 3 to 5
in RP/1915/2015
: Mr. S.V. Purohit, Advocate with
Ms. Shreya Bhatnagar, Advocate
Dated : 11 Dec 2015 ORDER
JUSTICE V.K. JAIN, PRESIDING MEMBER
The complainants who are respondents in Revision Petition Nos.665 to 668 of 2015 purchased tenements from the petitioner in terms of the individual agreements of sale executed between the petitioners and the concerned complainants. The possession of the tenements was delivered to the complainants and the sale deeds in their favour were also executed. The case of the complainants is that soon after taking possession of the tenements, they noticed cracks and heavy seepage in the tenements. The wall of the southern side was also found to be of lesser height. Several other defects detailed in the complaints were also noticed by them and brought to the notice of the petitioners for rectification. Despite having collected one time maintenance fee from them, the petitioner Co. did not carry out the requisite repairs. Individual complaints were, therefore, filed by the respondents/complainants seeking removal of the defects noticed in the tenements. They also sought damages from the petitioners. This was also the grievance of the complainants that the petitioners despite having collected Rs.30,000/- for each tenement for three phase electric connection had provided only single phase electric connection. The complainants in C.C. No.117/2007 also alleged that the construction of their tenements had not been completed. They sought completion of the said tenement by the petitioners.
2. The complaints were resisted by the petitioners inter alia on the ground that there was no defect in the construction carried out by them. As regards the maintenance amount, it was claimed that the same had been transferred in the account of the Association of Apartment Owners. Responding to the specific complaint of the complainants in C.C. No. 117 of 2007 alleging delivery of incomplete tenement to them, it was stated that it had been agreed between the parties that they would be given the first floor tenement only with outer wall, door frame, wood frame and outer plaster and the internal finishing will be done by the complainants. It was also stated in the reply filed before the District Forum that it had been made clear to the flat buyers that the construction being heterogeneous in nature comprising of RCC and brick work, the defects on account of unequal contact and expansion will not be treated as defects. According to the petitioners, it was also accepted by the complainants that considering the heterogeneous nature of the construction, there will be leakage and seepage of water between masonry and concrete work.
4. In CC No.137/2007 (117/2007), the District Forum directed the petitioners to remove the defects and complete the incomplete work or pay a sum of Rs.2,17,186/- to the complainants along with cost of the proceedings quantified at Rs.3,000/-. The aforesaid amount of Rs.2,17,186/- comprised Rs.14,320/- for rectification of the defects and Rs.1,79,000/- for finishing the incomplete work on the first floor and the terrace floor of the tenements.
In CC No.113/2007 (136/2007), 117/2007 (147/2007) and 116/2007 (146/2007), the District Forum directed the petitioners to rectify the defects or to pay a sum of Rs.9,981/- each to the complainants along with compensation quantified at Rs.10,000/- each and the cost of litigation quantified at Rs.3000/- each.
In passing the aforesaid orders, the District Forum relied upon the report of a Commissioner which it had appointed to inspect the tenements of the complainants.
5. Being aggrieved from the order passed by the District Forum, the petitioners approached the concerned State Commission by way of separate appeals. Dr. Gopal Bhutda and Dr. (Mrs.) Jasmine wife of Dr. Gopal also filed a counter appeal before the State Commission. Vide impugned order dated 27.8.2014, the State Commission dismissed all the appeals, thereby maintaining the orders of the District Forum in all respects. Being dissatisfied, the petitioners are before this Commission by way these revision petitions.
6. The report of Dr. Vinod Ganvir, who had carried out inspection in terms of the order of the District Forum to the extent it is relevant in respect of CC No.117/2007, reads as under:-
"I have inspected the tenement no.56, and also gone through the Structural Drawings and the Stability Certificate submitted by the other side issued by a renowned Structural Designer Dr.(Prof.) Basole, a retired Professor & HOD of Deptt. Of Civil Engineering, VNIT, Nagpur. The construction site is a total black cotton soil and the competent designer has proposed a hybrid design suitable for such sites. The construction develops hair cracks during initial soil settling period and the same are rectifiable. The cracks between column/beam and the brick masonry are eminent due to heterogeneous nature of construction.
The seepage in some other part of the building are to be removed by investigating the source of seepage and plugging the same. The holes created by the owner to fix the angles/holdfast in the eastern side wall of the staircase need to be repaired and plugged. The first floor internally is incomplete in all respect. The terrace floor finish is not done. The built up area is more by about 61 sft. than agreed upon.
Taking into consideration the total amount of rectification work at tenement No.56, I take the rate of work at Rs.100.00 per sqm. of area of tenement amounting to Rs.14,320/-
1st floor admeasuring 71.60 sqm. at 2500/- per sqm.
Rs.1,79,000/-
Terrace floor finish at Rs.500/- per sqm Rs.23,866/-
Total Rs.2,17,186/-
Certified that the total cost of rectification work post completion/occupation of the Tenement No.56 (A Type) at Indiradevi Town, middle ring road, Wathoda, belonging to Dr.(Mrs.) Jasmine & Dr. Gopal Bhutda shall amount to Rs.2,17,186.00 is net and fair to the best of my knowledge and belief."
It would thus be seen that the Local Commissioner found cracks between column/beam and the brick masonry which had occurred due to heterogeneous nature of the construction. He also noticed that the construction site was a total black cotton soil and a competent designer had proposed a hybrid design suitable for such sites. He found that the construction had developed hair cracks during initial soil settling period which was rectifiable.
The Court Commissioner estimated Rs.9981/- as the cost of rectification, in respect of the tenements of the complainants other than the complainants in CC No.117/2007.
7. Clause 12 of the Agreement to Sell reads as under:-
"12. That it is understood by the PURCHASERS that the construction is of heterogeneous in nature comprising of RCC and brick work. It is understood by the PURCHASERS that short coming inherent to the heterogeneous nature of construction like those due to unequal contraction and expansion or unequal settlement of footing are likely to occur and will not be treated as defects. It is further understood as agreed by the PURCHASERS that due to heterogeneous nature of construction joints between the masonry and concrete or any such other joints, leakage or seepage of water is likely to occur and this will not be treated as defect in construction. The DEVELOPER may repair the same at the cost of the PURCAHSERS."
It was contended by the learned counsel for the petitioners that in view of the aforesaid clause, the defects which occurred due to heterogeneous nature of the construction on account of unequal contraction and expansion or unequal settlement of footing can be repaired by the petitioners only at the cost of the complainants and, therefore, there was no justification for awarding any compensation on account of the alleged defects in the construction. I, however, find, from the report of the Commissioner, that the cracks between the column/beams and brick masonry were not the only defects found by him in the construction. There was seepage in other parts of the building which the petitioners were required to plug after identifying the source of the said seepage. The Local Commissioner also found that holes had been created by the petitioners in the eastern side wall of the staircase in order to fix the angles/holdfast. The petitioners are certainly required to plug those holes. The Commissioner estimated the cost of rectification work in respect of each tenement. The petitioners, in my view, are required to pay the aforesaid amount to the complainants. In fact, during the course of hearing, the learned counsel for the petitioners clearly stated that the petitioners were seriously challenging only the compensation required to be paid to Dr. Gopal Bhutda and Dr. (Mrs.) Jasmine wife of Dr. Gopal for completion of the first floor and the terrace floor. The direction of the District Forum and the State Commission for rectification of the defects, therefore, does not call for any interference by this Commission in exercise of its revisional jurisdiction. I, however, give an option to the petitioners to pay a sum of Rs.14,320/- to the complainants in CC No.117/2007, and Rs.9981/- each to the complainants in other cases along with interest on that amount @ 9% p.a. from the date of filing of the complaint, instead of rectifying the defects in terms of the order of the District Forum, so that there is no dispute in future as to whether all the defects pointed out by the Commissioner in the tenements have been duly rectified or not. The petitioners shall either remove the defects pointed out by the Commissioner or pay the aforesaid amount to the concerned tenement owner along with interest @ 9% p.a. within 12 weeks from today.
8. Considering that the petitioners failed to rectify the defects despite having been asked to do so, the direction for payment of compensation and cost of litigation also does not call for any interference by this Commission in exercise of its revisional jurisdiction.
9. Coming to the direction for payment of Rs.1,79,000/- to Dr. Gopal Bhutda and his wife for completion of the first floor and the terrace floor, it is an admitted case of the parties that possession of the said tenement was delivered to the aforesaid complainants on 27.1.2005. It was expressly pleaded by them in para 9 of the complaint that they were placed in possession of the tenement vide possession letter dated 27.1.2005. It is also an admitted position that the sale deed in their favour was executed and registered on 14.3.2005. A specific averment to this effect has been made in para 10 of the complaint.
A perusal of the acknowledgement dated 27.1.2005 given by the complainant Dr. Gopal Bhutda would show that at the time of taking possession, he was fully satisfied in respect of the construction, title, amenities, specifications and modifications directed by him from time to time. There is no evidence of the complainants having lodged any protest with the petitioners, soon after receiving possession or even soon after execution of the sale deed, on the ground that the construction of the first floor and the terrace floor was incomplete. No notice in this regard was sent by them to the petitioners at any time prior to 14.12.2006. Though it is not in dispute that the construction of the first floor and the terrace floor of the tenement was not completed, the case of the petitioners in this regard is that the complainants had booked the apartment with them through one Mr. Govind Pasari agreeing to have first floor only with outer wall, door frame, wood frame and outer plastering but without any internal finishing and that is why they accepted possession without internal work of the tenement having been finished, without any protest or objection. In my view, the complaint to the extent it pertains to the first floor and the terrace floor of the tenement being incomplete is clearly barred by limitation prescribed in section 24A of the Consumer Protection Act. The absence of internal finishing of the flat was not a defect or deficiency which the complainants would not have noticed at the time of taking possession of the tenement on 27.1.2005. A construction may have latent as well as patent defects. A newly constructed house may have patent defects which are bound to be noticed at the time of taking possession of the house. The complaint alleging such patent defects in the construction of the house, therefore, must necessarily be filed within two years from the date the possession is taken since the cause of action for filing such a complaint arises as soon as possession of the house is taken. However, as far as latent defects in the construction are concerned, the requisite period of limitation would commence only from the date such defects are noted by the complainant for the first time. Without noticing the latent defects, he would have no cause of action to file a complaint seeking removal of the said defects. The possession of the tenement in question having been taken by the complainants on 27.1.2005 the prescribed period of limitation for filing the complaint expired on 27.1.2007. Having been filed on 14.3.2007, the compliant was patently barred by limitation prescribed in section 24A of the Consumer Protraction Act. Since no application seeking condonation of delay in filing the complaint was moved before the District Forum, the complaint must necessarily fail, being barred by limitation.
10. It was contended by the complainant Dr. Gopal Bhutda that they had no option but to accept the possession of the tenement on 27.1.2005 since the petitioners were not willing to complete the construction of the first floor and the terrace floor. However, I find no such averment in the complaint filed by them. In any case, nothing prevented the complainants from filing this complaint within two years from 27.1.2005 when possession of the tenement was taken by them from the petitioners.
11. The State Commission rejected the pea of limitation on the ground that the complaints were filed within two years from the execution of the sale deed. The State Commission, in my view, was not correct in taking the date of execution of the sale deed as the date from which the period of limitation was to commence. The aforesaid period, in terms of section 24A of the Consumer Protection Act commence from the date on which the cause of action accrues to the complainants and the said cause of action in my view, accrued on 27.1.2005 when possession of tenement was taken by them from the petitioners. The view taken by the State Commission, therefore, cannot be upheld.
12. The learned counsel for the petitioners has referred to the decisions of this Commission in Makbool Alam Ansari Vs. M.S.K. Mapara in R.P. No.665 of 2015 decided on 9.2.2012 in support of his contention that the complaint filed by Dr. Gopal Bhutda and his wife is barred by limitation. In Makbool Alam Ansari (supra), the petitioners obtained possession of the flat on 31.8.2004 and noticing defects in the construction, he filed a consumer complaint. The respondent resisted the complaint inter alia on the ground that it was barred by limitation having been filed more than two years from the date of taking possession of the flat. It was held by this Commission that the complaint was barred by limitation having not been filed within two years from the date of cause of action. The complainant Dr. Gopal Bhutda on the other hand, has referred to the following judgements:-
1. Faquir Chand Gulati Vs. Uppal Agencies (P) Ltd. [(2008) 10 SCC 345]
2. France B. Martins and Anr. Vs. Mafalda Maria Teresa Roadrigues [2000 (1) Civil L.J. 400 Supreme Court].
3. Marridain Promoters Pvt. Ltd. and Ors. Vs. Harish Narayan Raghani and Ors. [IV (2012) CPJ 455 (N.C.)]
4. Yashpal Marwaha Vs. Pushpa Builders Ltd. [II (2006) CPJ 259 (N.C.)]
5. P. Mohan Bhat Vs. M.R. Jaishankar [II (2009) CPJ 141 (N.C.)]
6. D.S. Yadao Vs. Indian Railway Welfare Organization [I (2011) CPJ 109 (N.C.)]
7. Hindustan Latex Ltd. Vs. Neoplast Engineering Pvt. Ltd. [II (2000) CPJ 285]
8. Sachin Ghate Vs. Uday Nagar Colony [1998 (2) CPR 114
9. A Velanganni Vs. S. Rajagopalan [III (2002) CPJ 74 (N.C.)]
10. M.D. Kerala Automobiles Ltd. Vs. P.S. Harindraprakas [III (2002) CPJ 203 (N.C.)]
11. A.P. Singh Vs. Paramjeetkaur [I (2008) CPJ 73]
12. Madurima Kumar Vs. Ansal Housing and Construction [I (2007) CPJ 99]
13. I have carefully considered the decisions relied upon by the complainant Dr. Gopal Bhutda. In none of the judgements, it has been held that the period of limitation in respect of patent defects will commence from a date later on the date on which the said patent defects comes to the notice of the complainant. No doubt, a builder is under an obligation to rectify the defects, if any, found in the house constructed by him, but if he fails to do so, the complainant is required to approach a consumer forum within two years from the date on which the said defect is noticed by him for the first time. In case he was prevented by sufficient cause from filing a complaint within the prescribed period of limitation, he must file an application seeking condonation of delay in filing the complaint. In France B. Martins (supra), the State Commission had directed the appellants/opposite parties to specifically perform the agreement by executing the sale deed of the flat in favour of the complainant. The plea of limitation was negated noticing that till 30.8.1991, the appellants had been acknowledging liability to deliver legal possession of the flat to the respondents and computed from that date the complaint filed in the year 1991 was within limitation prescribed in Article 54 of the Limitation Act. It would be pertinent to note here that the complaint in this case was filed before section 24A was added to the Consumer Protection Act and therefore, the provisions of the said section did not apply to the complaint. Moreover, there is no acknowledgement by the petitioners, agreeing or assuring.
In Yashpal Marwaha (supra), the OP No.1 admitted deficiency of service on its part and promised to rectify the same at the shortest time but had not done so. It was, therefore, held that the cause of action was a continuous one and still subsisting. However, in the present case, there is no such acknowledgement on the part of the petitioners and, therefore, the cause of action which accrued to the complainants, cannot be said to be a continuous or recurring cause of action.
14. For the reasons stated hereinabove, I hold that the Fora below were not justified in entertaining the complaint to the extent it pertains to incompletion of the first floor and the terrace floor of the tenement purchased by Dr. Gopal Bhutda and his wife.
15. For the reason stated hereinabove, Revision Petition Nos. 666 of 2015, 667 of 2015 and 668 of 2015 are dismissed with no order as to costs. Revision Petition No.665 of 2015 is partly allowed by directing the petitioners to pay only a sum of Rs.14,320/- assessed by the Commissioner as the cost of removing the defects along with compensation quantified at Rs.10,000/- and the cost of litigation quantified at Rs.3,000/- to the complainants within four weeks.
16. In Revision Petition No.1915 of 2015, the petitioners/complainants are seeking compensation higher than what has been awarded to them by the State Commission. Since I have partly allowed Revision Petition No.665 of 2015, this revision petition which is otherwise barred by limitation having been failed with delay of 168 days, is liable to be dismissed. The said revision petition is accordingly dismissed, with no order as to costs.
......................J V.K. JAIN PRESIDING MEMBER