State Consumer Disputes Redressal Commission
Paresh Mohandas Naik & Another vs M/S Jai Santoshi Housing Pvt. Ltd. on 10 November, 2017
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BEFORE THE GOA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION,
PANAJI - GOA
C.C. No. 15/2016
1. Mr. Paresh Mohandas Naik,
s/o Shri. Mohandas Naik,
aged 36 years,
Civil Engineer and his wife
2. Mrs. Parineeta P. Naik,
Aged 34 years,
d/o Dattaram Parsekar,
Civil Engineer,
Both Indian Nationals,
r/o Block No. B-16,
Electricity Department Quarters Altinho,
Panaji, Tiswadi, Goa,
Presently residing at Flat No. F1
Madarines Court,
Gaulembhat,
Chimbel, St. Cruz - Goa. ... Complainants
V/s.
1. M/s. Jai Santoshi Housing Pvt. Ltd,
A private Limited Company
Having its registered office at 268,
Masjid Moth,
Near Uday Park New Delhi,
Through its Authorised
Representatives/Director,
Mr. Shailesh S. Mandrekar,
Aged 39 years,
s/o Shri. Shantaram Mandrekar,
in service, Indian National,
married, r/o St. Annes Colony,
Tivim Bardez Goa.
2. M/s NIRVANA NEST BUILDCON PVT. LTD,
A private Limited Company,
Having its registered office at:
1. Sapana Garden,
2nd Floor,
Porvorim Goa.
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2. 268, Masjid Moth,
Near Uday Park New Delhi,
Through its Authorised
Representatives/Directors,
A. Mr. Danny Fernandes,
Major of age,
r/o above mentioned address of a company,
B. Mr. Shailesh S. Mandrekar,
Aged 39 years,
s/o Shri. Shantaram Mandrekar,
in service,
Indian National,
Married, r/o St. Annes Colony,
Tivim, Bardez - Goa. ... Opposite Parties
Ms. S. Naik, Adv. for the Complainants
Ms. M. Soares Adv. for the Opposite Parties
Coram: Shri. Justice U. V. Bakre, President
Smt. Vidhya R. Gurav, Member
Dated:10/11/2017
JUDGMENT
[Per Justice Shri. U. V. Bakre, President] The Complainants have filed this Complaint against the Opposite Parties (OPs, for short) to direct them to install the transformer, appropriate capacity sewage system, construct/ provide soak pit and septic tank taking into consideration the capacity of flat owners, to do internal and external décor as agreed upon, to provide front teak wood/European style modular doors entrance front door, to provide 5 doors of good quality and fix ceramic tiles to the terrace of the said building/complex, to provide water proofing to the toilets, to provide Basket ball court, Volley Ball court, Badminton court, Jogging track and allot parking etc. in the open space as mentioned in brochure/sale pamphlet, to take necessary action regarding the cracks in the column and on the walls in order to clear the defects which are occurring/recurring. The Complainants have further prayed to direct the OPs to pay a sum of Rs. 15,00,000/- as compensation/liquidated damages towards 3 undue inconvenience, mental agony/torture, suffered by them as well as the expenditure they had to incur on legal fees, transport, waste of valuable time and to execute the Sale deed/Conveyance of the flat No. F-1 in favour of the Complainants within a period of 30 days from the date of order.
2. Case of the Complainants is as follows:-
The O.P. No. 1 as the owner of an immovable property known as "Goulem Batta", admeasuring 4575 square metres, surveyed under survey No. 49/4 at Chimbel, St. Cruz - Goa and the O.P. No. 2 as developer entered into an Agreement for Development and Sale dated 02/06/2008 to construct a residential scheme identified as "Madarin's Court" in the said property and have constructed the said residential cum commercial building/complex in the said property. Thereafter by virtue of an "Agreement for Finance and Sale" executed on 30/12/2008 and registered before the Sub Registrar of Ilhas, the Complainants became the financers cum purchasers of the flat bearing No. F-1, admeasuring 100 square metres of super built up area (including incidence of staircase) on the first floor, in block "A" of the said building Complex together with car parking area which has been constructed in the block "A"
and the proportionate undivided share in the land. Since there were mistakes in the said agreement dated 30/12/2008, a Deed of Rectification/Correction dated 07/04/2010, was executed and registered before the Sub- Registrar of Ilhas. The OPs had assured to install a transformer in view of the load/number of flats constructed in the said project for which an amount of Rs. 20,000/- each has already been paid by the Complainants and the other flat owners of the building. The OPs had undertaken to complete the said work of installation of transformer as mentioned in the draft of Sale Deed which was emailed to the OPs on their email address pursuant to the concluded contract. The OPs had also undertaken before the Police Inspector of Mapusa Police Station to discharge their 4 obligations, pursuant to which the draft of the sale deed was sent to the OPs at their request on 26/11/2015. The OPs had also undertaken to provide internal décor i.e. the walls would be of vitrified tiles with matching skirting, external décor i.e. external walls would be painted with combination of stone/texture Paint Finish/Glass, proper sewage system, septic tank, soak pit tank and front door would be of teak wood and other doors would be of good quality amongst other facilities. The OPs had also assured the Complainants that all the doors of terrace would be of good quality. The brochure/sale pamphlet provided by the OPs to the Complainants also showed that the OPs had agreed to provide a Basketball court, Volley ball court, Badminton court, Jogging track, allotted parking, etc. in the open space area which is yet to be developed. The OPs had also assured the Complainants that R.C.C. slabs, columns, toilets, water proofing of the toilets, ceramic tiles of the terrace and the floor of each flat of the said building complex would be of first quality. However the OPs have not discharged their obligations.
3. The Complainants further alleged as follows:-
The OPs were reminded by different modes like email, telephone, letters, etc. about the sub-standard quality work carried out by them. The Complainants have already spent an amount of Rs. 1,00,380/- from their own pocket towards the work of painting, hardware, electrical, tiling, wall dado in bathrooms, vitrified flooring and other miscellaneous work, etc., since the OPs failed to carry out the said work. Bills of the said work have been already submitted to the OPs and the Complainants are entitled to deduct the said amount from the total consideration payable to the OPs. However only an amount of Rs. 1,00,000/- has been shown as deduction in legal notice dated 11/01/2016 as well as in the Complaint, since the Complainants have agreed to forfeit an amount of Rs. 380/- only to arrive at amicable settlement between the parties 5 before the Mapusa Police Station. The Complainants have paid the sum of Rs. 14,88,000/- to the OPs by 4 cheques as detailed in paragraph 8 of the Complaint and have always been ready and willing to pay the balance amount of Rs. 3,52,000/- after deducting the amount of Rs. 1,00,000/- and Rs. 14,88,000/- from the total consideration of Rs. 19,40,000/-.
4. The Complainants further pleaded as under:-
In the second week of March, 2013, the Columns on first floor, below the flat F1, block 'A' started developing cracks. The Complainant No. 1 immediately informed the OPs telephonically as well as wrote letters on 13/03/2014 and 19/03/2014 regarding the said defects. The surveyor attached to the office of the Superintendent of P.W.D., Altinho, Panjim-Goa also visited the site and issued report dated 23/03/2014 after factual verification. The OPs expressed regret and assured that they would do the needful and the OPs visited the site to carry out repairs to the defects. However, the OPs did not furnish any certificate from any R.C.C. consultant. The Complainants again noticed that some more cracks had developed on the walls and columns of the flat F-1 of the Complainant and also on some walls and columns of other flat owners of the said building. It was also seen that 5 doors of the terrace have been totally broken. The OPs did not keep up to their promise of providing the front door of teak wood/ European style modular doors. The OPs did not carry out water proofing in the toilet area which has caused leakages/dampness. The ceramic tiles on the terrace have been dismantled and damaged, which have resulted in dampness in the RCC structures below. The sewage chambers are overflowing being capacity of less than and no soak pit has been provided. The sewage system is leaking at several places. The septic tank capacity is not sufficient. The septic tank is also overflowing and the soak pit has not been constructed. The OPs are also intentionally avoiding to execute the sale deed of the said 6 Flat F-1. The OPs have thus committed a fraud. The lives of the Complainants are in danger due to above mentioned defects which are hazardous to life and safety. The Complainants are undergoing undue inconvenience. The OPs have committed a breach of trust as well as of contract and deficiency in service. The Complainants therefore issued a legal Notice dated 11/01/2016, through advocate, by registered post A.D. to the OPs. However the OPs have failed to discharge their obligations notified in the said notice. Hence Complainants have filed the present Complaint.
5. The Complainants have relied upon various documents namely:- (a).- Deed of sale dated 18/03/2008 along with Power of Attorney dated 17/03/2007, (b).- Agreement for Finance and Sale dated 30/12/2008, (c).- Deed of rectification/correction dated 07/04/2010, (d).- Brochure/sale pamphlet, (e).- Legal notice dated 11/01/2016, (f).- Letters dated 13/03/2014 & 19/03/2014, (g).- Report dated 23/03/2014 issued by the Surveyor, (h).-Draft of Sale Deed, (i).- Bank Statement, (j).- Receipts of cheques, (k).- A. D. Cards,
(l).- Postal envelopes, (m).- Postal receipts, (n).- Agreement for Development and sale dated 02/06/2008, (o).- Sale Deeds of adjacent flat owners, (p).- Receipts showing expenditure made by the Complainants, (q).- Copies of emails sent by both the parties,
(r).- Photographs, (s).- Newspaper, and (t).- police Complaint.
6. By way of Written Version, the OPs alleged that the Complaint is barred by law of limitation. The OPs specifically pleaded as under:-
The entire agreement and commitment between the Complainants and the OPs is what has been agreed to in the agreement of construction and sale dated that 30/12/2008 and nothing more than that. The OPs denied that they have assured or undertaken to do all that is stated by the Complainants, which is beyond the scope of the said agreement. It is false that the 7 Complainants and other flat owners have paid to the OPs an amount of Rs. 20,000/- each. The OPs had called upon the Complainants and other flat owners to contribute a sum of Rs. 20,000/- each, towards the transformer but they failed to make any contribution. The OPs had applied for the installation of a separate transformer. But the electricity department charged the OPs for the said extra load supply and gave the said building of the OPs a special load supply connection from another transformer, the cost of which was borne by the OPs. The purchasers of the flats, including the Complainants were to pay the said amount of Rs. 20,000/- each which is still to be paid.
7. The OPs further stated as follows:-
The suit flat i.e Flat No. F1 was complete in all respects prior to February 2011, much before 24/03/2011 and there was no work left for Complainants to complete. The Occupancy certificate dated 24/03/2011 was issued by Village Panchayat of Chimbel to building "A" construed in survey No. 49/4 of Chimbel Village, which includes suit flat and this confirms the completion of the suit flat and the building as per the approved plans. It is false that Complainants have paid Rs. 14,88,000/- to the OPs towards the suit flat. The Complainants are yet to pay to the OPs a sum of Rs. 4,52,000/- towards the balance consideration for the purchase of the suit flat, car parking space and the proportionate share/right of the land; Rs. 4,47,480/- towards interest for late payment from April, 2011 to September, 2016; and a sum of Rs. 95,000/- towards the other charges mentioned in the agreement for construction and sale, and other payments, which the Complainants have failed to pay.
8. The OPs denied all the allegations made by the Complainants in the Complaint about various defect in the flat or in the building. They stated that as on date the Complainants owe to the OPs a total sum of approximately Rs. 10,54,480/- i.e. Rs. 4,52,000/- towards the 8 balance consideration of the suit flat, Rs. 4,47,480/- toward interest payable by the Complainants to the OPs @ 18%p.a. from March 2011 when the suit flat was ready for occupation till September 2016 on the delay in paying the balance purchase consideration, Rs. 95,000/- towards the other payments mentioned in the agreement for construction and sale dated 30/12/2008 and notice dated 22/08/2013, and a sum of Rs. 60,000/- towards maintenance. The OPs alleged that they are always willing to execute the sale deed of the suit flat in favour of the Complainants provided total payments are made by Complainants.
9. The OPs relied on the following documents:- (a).- Resolution of Board of Directors of O.P. No. 1 and 2, (b),- The Agreement for Construction and Sale dated 30/12/2008, (c).- Occupancy Certificate dated 24/03/2011, (d).- Site Plan of Mandarins Court, (e).- Notice dated 22/08/2013 along with the statement of dues, and (f).- Letter dated 04/02/2014,
10. The Complainants filed Affidavit-in-evidence of the Complainant No. 1. The OPs filed Affidavit-in-evidence of Mr. Benny Fernandes, authorized representative of both the OPs. Both the parties have filed written submissions. Lr. Counsel for the respective parties also advanced oral arguments. We have gone through the entire material on record.
11. The Complainants have relied upon the judgment of the Hon'ble Supreme Court in the case of "Lucknow Development Authority Vs. M. K. Gupta" reported in AIR 1994 SC 787, wherein it has been observed that the Act is a social benefit oriented legislation and the provisions of the Act have to be construed in favour of the consumer to achieve the purpose of the enactment. The Hon'ble Supreme Court has held that the primary duty of the court while construing the provisions of such an Act is to adopt a constructive 9 approach subject to that it should not do violence to the language of the provisions and is not contrary to attempted objective of the enactment. We have kept in mind the above principle laid down by the Apex Court. The Complainants have also relied upon the case of "Yash Pal Marwaha Vs. Pushpa Builders Ltd. & Another", reported in [CDJ 2005 (Cons.) Case No. 078], wherein the possession of the flat was taken in the year 1992 but the complaint was filed more than a decade later. However, in the case supra, the cause of action had arisen on 25/28.02.2000 when the opposite party admitted the deficiency in service on their part and promised to rectify the same at the shortest time but not done due to which the cause of action was continuous and subsisting and further the latest cause of action had arisen on 20/04/2002 when the builder terminated the sale agreement itself. The facts of the case supra are totally different and the above judgment is not applicable to the present case.
12. The OPs have specifically pleaded in paragraph 1 of the written version that the Complaint is barred by the law of limitation. Section 24A(1) of the Act mandates that the District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen. There is no application or prayer in the Complaint for condonation of delay and hence the provision of Section 24A(2) is not applicable to the present case. In the case of "Haryana Urban Development Authority Vs. B. K. Sood", reported in [2005 LawSuit (SC) 1456], the Hon'ble Supreme Court has held that Section 24-A of the Act debars any Fora set up under the Act, admitting a complaint unless the complaint is filed within two years from the date of which the cause of action has arisen. In the case of "Sebastian M. D. Vs. M. J. Devdas" reported in [1986-2013 Consumer 184384 (NC)], which is relied upon by the OPs, the Complaint was filed for compensation alleging deficiency in service due to defective construction and leakage in the roof of the 10 residential building. Admittedly, the said building was constructed in the year 1999 and the complaint was filed in the year 2008. The alleged defects were noticed after the work for the shop was completed in the year 2003. The Hon'ble National Commission refused to accept the contention that the cause of action was continuous. The National Commission held that pursuing the matter with the opposite party time and again and sending of representations repeatedly do not extend the period of limitation. It was held that the complaint was hopelessly barred by limitation. In another case of "The Shiv Shakti Co-operative Group Housing Society Vs. Haryana Urban Development Authority and another"
reported in [ 1986-2013 Consumer 18986 (NC)], also relied upon by the OPs, the complaint was filed alleging deficiency in service on the part of the OP with the prayer to release permanent water connection, refund of interest already charged on instruments, etc. The complaint was however filed after almost three years of the possession of the land. The Hon'ble National Commission held that if civic amenities were not available, the complainant should not have taken possession of the plot and once the complainant had taken possession of the land, he must have filed the complaint within a period of two years from taking possession. It has been held that the complaint was clearly barred by limitation. The above judgments are fairly applicable to the present case.
13. In the present case, the possession of the suit flat had to be given to the Complainants as per the agreement on 30/06/2011. Admittedly, the occupancy certificate for the building in which the suit flat is situated has been obtained by the OPs on 24/03/2011 and possession of the suit flat was delivered to the Complainants in the same year 2011. The Complainants say that the possession as given in December, 2011 whereas the OPs say that the same was already given in February, 2011. Admittedly, entire sale consideration has not yet been paid by the Complainants to the OPs till date. Whatever 11 defects like cracks to the columns on the first floor, walls and columns of the suit flat and on the walls and columns of flats of other persons, damages to the doors of terrace, leakage in sewage system, overflowing of the septic tank were all allegedly noticed sometime in March 2013. Even as per the report dated 28/03/2014 of the PWD, Panaji-Goa, the cracks had been noticed about six months prior to 27/03/2014 which is in or about September 2013. It is also the grievance of the Complainants that various amenities as mentioned in the Complaint though assured and promised by the OPs to be made available to the Complainants, have not been made available. The cause of action for the said amenities had arisen when the Complainants took possession of the suit flat in the year 2011 and for alleged defects the cause of action arose in the year 2013. The Complainants have prayed for the said amenities and rectification of said defects vide prayer (a) and for compensation towards inconvenience, mental agony, etc. due to the above, vide prayer (b). With regard to the transformer of adequate capacity, the notifications dated 08/06/2005 and 09/06/2005 relied upon by the Complainants were existing at the time when the complainants took possession of the suit flat in the year 2011. However, the Complaint has been filed on 08/07/2016 and hence both the prayers (a) and (b) of the Complaint are clearly barred by limitation in terms of Section 24A of the Consumer Protection Act, 1986. Merely because the Complainant No. 1 was allegedly abused by Shri Shailesh Mandrelar on 24/10/2015 on his mobile, or the OPs were called at Mapusa Police Station on 25/10/2015 or the draft of sale deed was sent to the OPs on 26/11/2016 and because the Complainants sent various letters 13/03/2014 and 19/03/2014 and legal notice dated 11/01/2016, that cannot extend the period of limitation. Insofar as the prayers (a) and (b) of the Complaint are concerned, the cause of action cannot be said to be continuous as contended by the Lr. Counsel for the Complainants.
1214. Insofar as the sale deed in respect of the suit flat is concerned, the Complainants have pleaded that they are ready and willing to pay the balance amount of consideration and the OPs have also pleaded that they would execute the sale deed provided the Complainant pay the balance amount. Hence the prayer (c) can be granted subject to payment of balance amount by the Complainants to the OPs.
15. In the result, the Complaint is partly allowed. The prayers (a) and (b) are rejected. The OPs are directed to execute the sale deed of the flat No. F-1 in favour of the Complainants, within a period of 60 days from today provided the Complainants pay to the OPs the balance amount payable by them within a period of 45 days from today. Parties shall bear their own costs.
[Smt. Vidhya R. Gurav] [Justice Shri. U. V. Bakre]
Member President
QV/-