State Consumer Disputes Redressal Commission
M/S. Coronet Construction, vs V.Chandrasekaran, on 8 October, 2009
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI Present Hon'ble Thiru Justice M. THANIKACHALAM PRESIDENT THIRU Pon. GUNASEKARAN B.A.,B.L., MEMBER - I F.A.NO.513/2006 (Against order in C.C.No.476/1998 on the file of the DCDRF, Chennai (South)) DATED THIS THE 8th DAY OF OCTOBER 2009 Mohamed Yaseen, | Proprietor, | M/s. Coronet Construction, | Appellant/Opposite Party 103, R.K. Mutt Road, | Mandaveli, | Chennai 600 028. | Vs. V.Chandrasekaran, | 43, Flat No.3, Ground Floor, | Respondent/Complainant Abhiramapuram 3rd Street, | Chennai 600 018. The respondent as complainant filed a complaint before the District Forum against the appellant /opposite party praying for the direction to the opposite party to rectify the defects of the flat alongwith compensation and for cost. The District Forum allowed the complaint directing the opposite party to pay Rs.75,000/- towards compensation and cost of Rs.1000/-. Against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.10.04.2006 in CC No.476/1998. This appeal petition coming before us for hearing finally on 24.9.2009. Upon hearing the arguments of the counsels on eitherside, this commission made the following order: Counsel for the Appellant / Opposite party : M/s.V.Shankar, R.Chandrasudan and S.Ramesh, Advocates. Counsel for the Respondents/ Complainant : Mr.K. Ganesan. Advocate. M. THANIKACHALAM J, PRESIDENT 1.
The opposite party before the lower forum is the appellant herein.
2. The Respondent/Complainant entered into an agreement with opposite party originally on 22.11.1991 for the purchase of undivided share of land as well as a flat for a sum of Rs.2.25 lakhs, for the ground floor area measuring 800 sq.ft., for a further consideration of Rs.2,19,000/-.
Under the agreement construction, should be completed, possession should be handed over within 11 months from the date of handing over of the vacant possession by the owner of the land. The possession of the land was handed over on 18.07.1992. Thereafter, the opposite party/appellant extended the plinth area from 800 sq.ft. to 1040 sq.ft. for the enhanced cost of construction of Rs.1,26,169/- plus additional undivided share of land, sale consideration of Rs.65,831/- as well Rs.10,200/- towards registration charges. After construction, by causing delay also, the flat was handed over after two year and eight months, that is on 11.03.1995 as agreed. The opposite party has not fulfilled all the conditions and the materials used for the construction were below standard or sub-standard, resulting cracks, wornout weathering course, etc., as described in Para 5 of the complaint. Despite repeated request to rectify the defects, the builder has failed to do so, which should be construed as deficiency in service.
Therefore, the opposite party should be directed to rectify the defects as detailed in Para 5 (a) to (1) in addition to, as detailed in prayer Column 6 to 12 for compensation also.
3. The Appellant/Opposite Party accepting the agreement as well as the subsequent agreement [Memorandum of Understanding] would contend, that as agreed, the complainant has not paid the entire amount, that the payment of electricity charges for the consumption should be paid only by the complainant, that the complainant having not paid the entire amount, cannot accuse the builder as if there is deficiency in service, that the claim is barred by limitation, that the Consumer Forum has no jurisdiction to decide the case and on these ground with among other grounds, prayed for dismissal of the complaint.
4. The Lower Forum in its short order though has come to a conclusion that many of the complaints were not proved by letting satisfactory evidence, that the subsequent agreement alone can be taken into consideration, while deciding the delay, if so, the previous agreement cannot taken into consideration, that there is no proof that the amount has been spent by the complainant towards electricity charges etc., that the complainant while acknowledging the possession has not raised anything pertaining to the defects mentioned in the complaint and further holding, that they are all self serving. But unfortunately placing reliance upon the Commissioners report, which came into existence after filing of the complaint in the month of November 2005, came to the conclusion, as if there is deficiency in not providing Car Parking, and for major cracks in the bed room, for laying flooring in the steps etc., the complainant can claim direct damage and not for remote loss. Thus, concluding without any further finding, abruptly without assigning any reason, fixed the quantum as Rs.75,000/-, for which, a direction has been given, which is under challenge before us.
5. Heard. The Learned Counsel for the Appellant/Opposite Party as well as the Respondent/Complainant. Perused the written submissions as well as the documents relied on by the parties.
6. The main thrust of the Learned Counsel for the appellant are, that the claim of the Respondent/Claimant if any, is barred by limitation, that for the innumerable reliefs as claimed in the petition volumes of evidence and elaborate enquiry are required and this being the position, in a case of summary proceedings which is to be adopted by this Forum, deciding the quantum as did by the lower Forum is erroneous, that though the lower Forum has observed that the complainant has failed to prove the claims, but granted a direction for the payment which is self-contradictory and on these ground, the appeal deserve acceptance, thereby to dismiss the complaint.
7. Per contra, it is the submission of the Learned Counsel for the complainant/respondent, that since the claim is based upon a continuous cause of action, question of limitation fails to support the case of the appellant, that the order of the lower Forum mostly relying upon the Commissioners report should be accepted, since the same is reasonable, based upon factual position.
8. By going through the pleadings, giving our deep anxious thought, and scanning the materials, as well as perusing the order of the lower Forum, we are constrained or compelled, to accept the submissions of the Learned Counsel for the appellant, negativing the submission made by the Learned Counsel for the respondent since that is not based upon any basic principles, as well as acceptable even prima facie evidence.
9. Consumer Protection Act, 1986 herein after called Act, under Section 24 (a) says, no complaint shall be admitted unless it is filed within two years from the date, on which the cause of action has arisen.
Sub-section 2 of 24(a) gives power to the Forum, even to condone the delay for sufficient reasons to be shown.
Here, no such exclusion is sought for, whereas in the complaint the cause of action pleaded is from 22.11.1991, the date on which, the first agreement entered into between the parties, even ignoring the handing over of the possession, which should be the actual date of cause of action, as rightly submitted by the Learned Counsel for the appellant, then mostly stating the dates, regarding the correspondence which will not give renewed cause of action. Nowhere in the complaint, which runs 8 pages or so, it is stated that the claim is not barred, because of the continuous cause of action or the claim is filed fixing the date of cause of action, as if filed within two years from the said date. We are also fully aware of the fact that on technical ground of limitation, alone a genuine claim should not be allowed to suffer. But at the same time, when the claim is based upon unfounded allegations which could not be ascertained by the materials, the limitation should take its role, to decide the case. In this view, we have to see irrespective of the pleadings, what is actual date of cause of action, for the claim in the complaint.
10. Though there are two agreements, as admitted, the actual date for filing the claim must be the actual date of delivery of possession. From the date of delivery alone, the complainant had control over the property and he had an occasion to note the defects if any or to understand or realize what are the works not carried out. These things alone should give cause of action. Possession was handed over on 11.03.1995. The complaint came to be filed before the lower Forum, as seen from the records on 19.01.1998 that is after two years (34 months and 17 days). Therefore, we have no option, except conclude that the claim, if any is barred by limitation and this being the position, entertaining a complaint, and deciding the quantum or other relief will not arise for consideration.
11. Assuming that there was continuous cause of action (not so) and the complaint would be maintainable, we have to see, whether the complainant has proved his case, letting any satisfactory evidence. In the prayer column, twelve directions are sought for. The first prayer reads to rectify the defects pointed out in Para No.5 (a) to (1) and (i) to (xv). As seen from Para 5 (a), we are having innumerable claims, complaining so many things, against the builder, as well as in the construction, its quality etc., The trial Forum has not recorded any finding regarding the deficiency of service or what are the works incomplete, as per the agreement or what are the defects available in the construction and what is the value of those defects, in terms of money. The lower Forum observed, that there is no proof that the amount has been paid by the complainant as well as the complainant had spent the amount to rectify the defects etc., This being the position, it is impossible for any Forum, to grant the relief claimed by the complainant. In view of this fact alone, to our understanding, the trial Forum probably in order to help the complainant, placing reliance upon the Commissioners report, fixes Rs.75,000/-, for which, there is no base at all and we can say there is no iota of evidence also, to fix the said quantum.
12. The complainant having failed in his attempt to get many reliefs, as indicated above, though they were negatived by the lower Forum, has not preferred any appeal individually, thereby showing, the finding rendered by the lower Forum against him stand unchallenged. When we have also expressed some difficulties, in granting the relief as prayed by the complainant, the Learned Counsel of the appellant, very cleverly not pressed some of the prayer, making an endorsement on 14.09.2009 which reads Except prayer 1, 11 & 12, other prayers not pressed. As indicated above and as rightly submitted by the Learned Counsel for the appellant, Prayer No.1 includes other relief also, which would be seen from Para 5 (a).
Therefore, the relief sought for, remains as such and for those reliefs negatived, no appeal has been preferred.
This being the position, in our considered opinion, the trial Forum has committed an error in granting a sum of Rs.75,000/- as if they should be paid by the builder, for the deficiency of service or for the sub-standard construction etc., for which, there is no finding.
13. Possession has been delivered to the complainant on 11.03.1995. The case came to be filed in the year 1998. The Commissioner was appointed in the year 2004, and he has filed the report after inspecting the property in the year 2005, dated 01.11.2005. In the Commissioners report, what he had observed by inspection of the building are noted, and it has nothing to do with the alleged deficiency in service or defective construction etc., Construction took place elsewhere in the year 1994. After a decade, Commissioner visited the premises.
By erosion of time and improper maintenance, there might have been some cracks, damage to the floor, wall etc., which cannot be taken into account, as if it was caused, due to deficiency in service, or sub-standard construction etc., in the absence of proof.
14. The complainant even otherwise also, in our opinion, not entitled to any compensation since he has not paid the entire amount as agreed, as per the original agreement, as well as under the Memorandum of Understanding which came into existence, at later point of time.
The trial Forum itself in its order observed there is no proof that the said amount has been paid by the complainant, when it dealt with electricity charges etc., As seen from the correspondence between the parties, which are exhibited, amount was demanded, for obtaining electricity charge (vide Ex.A2) not complied with admittedly. As seen from Ex.A3, on 02.03.1995, the appellant has issued a notice, to the complainant informing the total value of the cost etc., quantifying the same at Rs.7,22,450/-. Out of the said amount, a sum of Rs.6,30,000/- has been paid, leaving the balance of Rs.92,450/-. The builder has also fairly conceded about the amount spent by the purchaser for mosaic, marble etc., as well as payment made at the time of handing over the key. He has fixed the balance of Rs.70,437/-, which appears to have been not paid, and this being the position, the purchaser of the flat, after a decade, is not entitled to complain anything against the builder, as if entire amount has been paid, there was deficiency in service etc., Really, the construction was very poor, and damage to the flooring, cracks in wall had occurred due to poor quality of work etc., which requires elaborate enquiry, and if at all the complainant is advised, he should work out his remedy, before the proper Forum and not to approach the Consumer Forum when there is dispute regarding the quantum of amount, which cannot be decided, in a summary proceeding, which the Forum is excepted to follow. Viewing the case from all possible and proper angles, the irresistible conclusion, that surfaced is the lower Forum has committed an error in ordering the appellant, to pay the amount which should be set aside.
15. The result, therefore, the appeal is allowed upsetting the order of the District Consumer Disputes Redressal Forum, Chennai (South) in O.P.476 of 1998, dated 10.04.2006 and the Petition dismissed. Considering the facts and circumstances of the case, the parties are directed to bear their respective cost, throughout. The Registry is directed to discharge the Fixed Deposit Receipt which was deposited, complying the mandatory deposit and hand over the same to the appellant.
PON GUNASEKARAN M. THANIKACHALAM MEMBER-I PRESIDENT INDEX : YES / NO Ns/mtj/construction