State Consumer Disputes Redressal Commission
Neelam Sharma vs M/S Ganpati Builders & Anr. on 14 March, 2017
Daily Order IN THE STATE COMMISSION : DELHI (Constituted under Section 9 of the Consumer Protection Act, 1986) Date of Arguments: 14.03.2017 Date of Decision: 27.03.2017 Complaint No. 504/2013 In the matter of: Mrs. Neelam Sharma W/o Arvind Sharma E-3, 10-D, Shatabdi Vihar Sector-52 Noida-201301 (UP) .......Complainant Versus 1. M/s Ganpati Builders Office at 702, New Delhi House 27, Barakhamba Road New Delhi- 110 001. Also at M/s Ganpati Builders Chamber No. 8 Kailash Tower Kaushambi Ghaziabad (UP) 2. Shri Ritesh Tiwari Proprietor Ganpati Builders S/o R.K. Tiwari R/o 8-A Premshanthi Kunj 2 Club Road Delhi. .......Respondents CORAM Hon'ble Sh. O.P.Gupta, Member(Judicial) Hon'ble Sh. Anil Srivastava, Member 1. Whether reporters of local newspaper be allowed to see the judgment? Yes 2. To be referred to the reporter or not? Yes SHRI O.P.GUPTA JUDGEMENT
The case of the complainant is that she booked an apartment at Vrindavan, UP from OP for her personal use of living of her family members. OP No. 2 is proprietor of OP No. 1. On 05.10.05 she deposited cheque of Rs. 1,95,000/- drawn on UTI Bank now AXIS Bank for which receipt was issued. She entered into agreement to purchase farm house No. 41. She was allotted farm no. 48 which was subsequently changed to 41 by OP. Brochure of OP impressed her. The same contains specification narrated in para 6 of the complaint. Brochure mentioned that Ops were to sell units in Maharaja Style and Samrat style. She booked Samrat style unit comprising of two bed rooms within the area of 1300 sq. ft. Area of the farm house was 2091 sq. mt. was 2500 sq. yds. The cost was Rs. 1300/- per sq. ft. which was to come to Rs. 19,50,000/-. She received letter dated 04.12.06 stating that house was complete , furnished and requested her to complete the delivery of the balance amount so that the possession could be taken. On 11.12.06 she informed the OP about the works to be completed before taking possession. She sent notice dated 08.09.07 reminding pending work. She received reply dated 12.10.07 stating that farm house was complete in all respects. On assurance that other work would be completed as per agreement after necessary permission from authority, she paid the entire amount and sale deed was executed on 28.12.07. On taking possession she informed that there was no development except structure of two bed room. Quality of the work was of highly poor quality. The farm house did not have regular 24 hours water supply nor electricity connection nor area was developed as per agreement. OP cheated by not providing even the basic amenity of water and electricity. The area is not habitable. There are no plants and hedges or landscaping as agreed. The possession was to be handed over within three months of agreement. As per agreement unit was to be provided with gyser and bathroom fittings of ISI mark which are not of said quality, as is clear from the photos annexed with the complaint. There is no RO water supply or power back up or lights in fountain or water proofing, club or sports complex. She spent around Rs. 5,00,000/- on the maintenance and up keep of the structure. She invoked penalty clause of 24% per annum as per additional terms and conditions. She issued notice dated 28.01.08, 10.02.09, 03.03.10, 14.06.11 and 07.08.12. Hence this complaint for Rs. 20,00,000/- lakhs for deficiency in service like water and electricity and other facility like golf course park, community centre from 2007 till filing of complaint. Rs. 26,00,000/- on account of cost of sub-standard quality of material @ Rs. 2000 per sq. ft., penalty amounting to Rs. 4,68,000/-, Rs.5,00,000/- for cost incurred by her in upkeeping and maintaining the structure in question, Rs. 25,00,000/- for mental torture, harassment, agony and suffering business. In all Rs. 80,68,000/- has been claimed.
2. OP filed written statement raising preliminary objection that complaint involves mixed question of law and facts which require evidence and interpretation of statute which cannot be executed under summary procedure of consumer protection Act. The complaint is without any cause of action. This court has no territorial jurisdiction as the farm house in question is situated in village Siana Tehsil Chhatta, Mathura, UP. Sale deed has already been executed and registered and possession handed over in 2007, so this court does not have any jurisdiction to entertain complaint which is barred by time. The complainant has no locus standi to file the present case. The claim is highly excessive, fanciful, imaginary, unjust, improper and manifold escalated to the price of the farm house paid by the complainant. On merits they stated that complainant is not a consumer but investor. They denied that complainant booked the farm house for her own use and use of family members. Conduct of the complainant in getting the sale deed not executed till 28.12.07 despite letter dated 04.12.06 from OP shows that she was not interested in completing the transaction. There was no liability of OP after execution and registration of sale deed and handing over of possession on 28.12.07. They denied that quality of construction was of poor quality or sub-standard. They disputed the entitlement of the complainant to receive any amount.
3. The complainant filed rejoinder and evidence by affidavit.
4. OP filed evidence by affidavit. Both the parties filed written arguments.
5. We have gone through the material on record and heard the arguments. It may be mentioned that in the meanwhile the complainant moved an application for inspection. Local Commissioner was appointed who gave report which appears to be supporting the complainant. The OP filed objection to the report stating that LC did not give any notice of intended visit and that is why OP could not be present at the time of inspection. The LC went beyond his scope by commenting upon the quality of work instead of telling the factual position. We are not entering into the said report or objection as we feel that complaint can be decided without same.
6. Coming to the first plea of the OP regarding locus standi of complainant to file the complaint, it appears that plea of the OP is that booking was done by Shri Arvind Kumar Sharma/ husband of the complainant. To this the counsel for the complainant clarified that he had already mentioned in the notice given before filing of complaint that initially the booking was in the name of Shri Arvind Kumar Sharma which was later on transferred in the name of complainant. Similarly initial booking was of farm house No. 48 which was later on changed by OP to farm house No. 41. The said facts are not disputed by the OP. We find that submissions of counsel for complainant are correct.
7. The other objection of the OP is regarding limitation. Sale deed is executed in 2007 whereas complaint has been filed in 2012.Apparently the same is barred by limitation of two years provided U/s 24 (A) Consumer Protection Act. Counsel for the complainant submitted that sale deed was got executed and possession was taken on the assurance of the OP that they would carry out the deficiency shortly. It is not clear as to how the said assurance was given, whether it was oral or in writing, if in writing where is that writing. A legible copy of sale deed was filed by the OP at the asking of this Commission. The said sale deed does not contain even a single word that any deficiency was pointed out by complainant or any assurance was given by OP.
8. The counsel for the complainant tried to make out that complainant has been continuously corresponding with the OP by pointing out the deficiency. Last communication is dated 07.08.12 and from that date the complaint is within limitation. We fail to appreciate argument. Correspondence/unilateral act of complaining cannot have the effect of extending of limitation. Otherwise it would give dangerous weapon in the hands of complainant to make representation at any belated/point. That would frustrate the object of introducing limitation. In RP No. 26/12 titled as Sadastian M D vs. M J Devadas decided by National Commission on 13.07.12 and in OP No. 55/01 titled as Hansa Wire Product Pvt. Ltd. Vs, United India Insurance decided by National Commission on 18.11.11. It has been held that representation do not extend limitation.
9. Another limb of argument of counsel for the complainant is that non removal of deficiency constitutes continuing cause of action and there can be no limitation in such case. In support of his submission he referred to decision of Hon'ble Supreme Court in Lata Construction vs. Ramesh Chandra (2000) 1 SCC586. The same is based on different facts and is not applicable to the case in hand.
10. We may add that recently National Commission has an occasion to decide whether removal of deficiency constituted continuous cause of action. In RP No. 3949 of 2008 titled as Jay Grih Nirman Pvt.Ltd.vs. Aruno-Dey Apartment Owners Association decided on 13.01.14, it was held that failure to remove deficiency after taking possession does not constitute continuous cause of action and the complaint was found to be barred by limitation. The present case is squarely covered in the ratio of said decision.
11. The counsel of the complainant relied upon decision in National Seed Corporation Ltd. Vs. M.Madhusudan Reddy (2012) 2 SCC 506, Lucknow Development Authority vs. M.K.Gupta (1994) 1 SCC 243, General Master India Pvt. Ltd. Vs,. Ashok Ramnik Lal Tolat (2015) 1 SCC 429. Haryana State Agriculture Marketing Board vs. Bishamber Dayal Goyal (2014) 16 SCC 24. We have gone through the said judgements and find that they are not applicable to the facts of the given case. Complainant also relied upon decision of National Commission in RP No.2359/12 titled as National Milroc Development Company vs. Ms. Anto Nieota Ribeiro Dsouza decided on .01.11.12 in which the complaint was entertained for rectification of sale deed to include clauses of agreement. Maintainability of complaint was not the issue and so the same is not a precedent.
12. In the other hand the counsel for the OP relied upon the deisionof this Comission in Vandana Aggrawal vs. Mahagun Developers Ltd 1 (2011) CPJ 373 in which it was held that disputes relating to property transaction by registered sale deed are governed by TPA and consumer foras have no jurisdiction. Similar observations are there in the decision of National Commission in M/s J.Girija vs. P. Satyanaryana 2013 (1) current consumer case 444.
13. Counsel for OP also relied upon decision of National Commission in D.K. Lalwani vs. Bhilai Steel Plant 2013(1) current consumer case 885 where complaint filed regarding non execution of registered deed after 31 years was found to be time barred. In The Shivshakti Cooperative Group Housing Society vs. HUDA 1986-2013, consumer 18996 National Commission held that complaint regarding the relief for permanent water connection filed almost three years after possession is barred by limitation. In M/s Ambe Rice Mill vs. Regional Manager Oriental Insurance Company Ltd, 2013(1) current consumer cases 291 National Commission held that theft of 37 bags of rice from truck, complaint filed after five years of theft was barred by limitation.vIn Sahil Garden Cooperative Housing Society vs. Paranjpe Estates & Development Company 1986 (2013) consumer 18280 it was held that for flat possession of which was given in 2003, complaint filed in 2009 is hopelessly barred by limitation. Application for condonation of delay was dismissed.
14. In Smt. Munesh Devi vs. U P Power Corporation Ltd. 2013 (1) current consumer cases 600 National Commission dismissed the complaint filed 156 days after limitation, as time barred.
15. Last but not the least is a fact that after taking possession, a person does not remain consumer. This is so as per decision of National Commission in Smita Roy vs. Excel Construction II (2012) CPJ 204 and Harpal Arya vs. Housing Board II (2016) CPJ 36. That being so the present complaint is not maintainable. The complainant may have her remedy elsewhere under Civil law.
16. To sum up the complaint is dismissed.
Copy of the order be sent to both the parties free of cost.
(ANIL SRIVASTAVA) (O.P.GUPTA) MEMBER MEMBER(JUDICIAL)