State Consumer Disputes Redressal Commission
Arvinder Singh vs M/S Aipl Ambuja Housing And Urban ... on 1 February, 2019
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
Consumer Complaint No.1020 of 2017
Date of Institution: 28.11.2017
Order reserved on: 24.01.2019
Date of Decision : 01.02.2019
Dr. Arvinder Singh S/o Shri Mohan Singh, resident of DV-27, "Dream
City" G.T. Road, Amritsar.
.....Complainant
Versus
1. M/s AIPL Ambuja Housing & Urban Infrastructure Limited,
having its registered office at 232-B, Okhla Industrial Estate,
Phase III, New Delhi, through its Managing Director.
2. M/s AIPL Ambuja Housing & Urban Infrastructure Limited,
having its site office at Dream City, G.T. Road, Amritsar,
through its Manager or any other person competent to receive
the summons.
3. Shri Harinder Singh, Director, M/s AIPL Ambuja Housing &
Urban Infrastructure Limited, "Masterpience", Gurgaon.
.....Opposite Parties
Complaint U/s 17(1)(a) of the Consumer
Protection Act, 1986 (as amended up to
date).
Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Shri Rajinder Kumar Goyal, Member.
Present:-
For the complainant : Mrs. Swatantar Kapoor, Advocate For the opposite parties : Sh. B.S. Sudan, Advocate .................................................................................. J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
The complainant has instituted this complaint U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act") against opposite parties (in short the 'OPs') on the premise, that original complaint no.177 of 2016 was filed before the District Forum Amritsar with regard to the cause of action in this case, where it was Consumer Complaint No.1020 of 2017 2 returned for want of pecuniary jurisdiction by the District Forum Amritsar. The complaint was thereafter filed before this Commission and the period already spent by complainant in prosecution of this complaint on same cause of action before the District Forum Amritsar is liable to excluded. The OP developed colony namely Dream City at G.T. Road Amritsar and sold the plots, constructed houses, flats and villas to different purchasers against their sale consideration. The complainant purchased Villa bearing no.DV-027 measuring 500 square yards, having construction of two and half storey for a sale consideration of Rs.94,03,830/- on the basis of allotment letter dated 13.04.2011 and took possession of above villa on 09.07.2013 after making payment of entire sale consideration amount and other charges to OP under compulsion, because of his children's education, despite his dissatisfaction with shoddy workmanship of the so called upscale villa duly recorded by him in the feedback form at the time of taking its possession. He was assured by OP for removal of the defects therein to his satisfaction. The cracks in the walls of the said villa became very prominent at different places, the cement plaster started peeling off, and due to seepage, a lot of fungus developed in the kitchen cupboards emitting foul smell therefrom. He brought it to the notice of OPs about above defects in the construction at the initial stage which could cause further threat to the life of the property of the complainant. The local officials of OPs failed to rectify them and he moved complaint through email on 18.01.2014 to the Director of OP company giving Consumer Complaint No.1020 of 2017 3 details of the above defects in the construction of the Villa. The complainant also sent reminder on 14.05.2014 and reply was received thereto from Deputy General Manager Projects stating that the defect liability was covered for a period of one year only from the date of possession and hence he expressed inability to remove the above defects and further claimed that they were part of normal wear and tear, which needed to be attended to by complainant himself. The complainant replied to this email on 04.06.2014, as the condition of the building was worsening. Despite sending emails to OP on 08.06.2014 and 11.06.2014, no efforts were made by OP to rectify the above defects. Even S.D. Jha official sent by OP for effecting repairs of external crack failed to do the needful. Nothing was done at the end of OP despite sending photographs through emails by complainant regarding the above defects in the construction and despite some meetings held between them. The OP admitted their defect liability, though with qualifying clause that it was valid for one year after handing over the possession of the property as given in para no.7 of reply on merits in CC/16/177. The OP tried their best to pass over the period of one year on one pretext or the other just to wriggle out from their liability, which is unfair trade practice on their part. The complainant has, thus, prayed for below noted reliefs against OPs:
(i) OPs be directed to carry out the required repairs of the Villa, as per the promised standards to his complete satisfaction.Consumer Complaint No.1020 of 2017 4
(ii) further to pay Rs.Four Lakh as compensation for mental harassment and litigation expenses.
2. Upon notice, OPs appeared and filed written reply and contested the complaint of the complainant vehemently. Preliminary objections were raised by OPs that complaint dated 24.11.2017 is barred by time. The complainant was conveyed by OP on 02.06.2014 that they have no liability to carry out any repair work at the premises, as purchased by him. The complaint has not been filed within two years from the date of cause of action and is, thus, barred by time, when there is no application for condonation of delay at the end of the complainant, after the decision of the complaint as returned by the District Forum Amritsar to complainant, he cannot file the complaint before this Commission. The complainant is not consumer, as he is owner of 50% of share of above Villa on the basis of registered sale deed dated 26.05.2015. The sale deed is a concluded contract of sale and purchase of immovable property without any service to be rendered by OPs to him. The complainant has concealed general terms and conditions relating to Villa thereby stood disentitled the reliefs claimed in this complaint. There is arbitration clause no.21 in the terms and conditions between the parties and this consumer complaint is, thus, not maintainable. OP no.1 is a local entity and in the absence of any privity of contract between complainant and OP no.3, the complainant cannot be said to be consumer of it and complaint against it cannot be said to be maintainable. The complaint is contested by OPs even on merits by Consumer Complaint No.1020 of 2017 5 averring that they have fulfilled the contractual obligations in this case without any deficiency in service on their part. The OPs denied this fact that the Villa with cracks in walls was delivered to complainant. The natural phenomenon of settlement, expansion and contraction due to humidity and temperature necessitates some restoration/maintenance work during initial 6-7 months in the Villa. The OP carried out gratuitously the above work for initial 6-7 months. The fact of purchase of above Villa by complainant has not been disputed by OPs. It is denied that complainant took possession of said villa on 09.05.2013. It is denied by OPs that walls of said Villa started developing cracks at different places and cement plaster started falling off after 3-4 months period only. Similarly, OPs also denied this fact that lot of fungus developed in the kitchen cupboards emitting foul smell. It is further denied by OPs that complainant informed them at their local office with request to recheck the whole construction work with regard to its quality. The OPs controverted the rest of the averments of complainant and prayed for dismissal of the complaint.
3. The complainant tendered in evidence his affidavit Ex.C-A alongwith copies of documents Ex.C-1 to Ex.C-11 and closed the evidence. As against it, OPs tendered in evidence affidavit of Gurbinder Singh, authorized representative Ex.OP-A alongwith documents Ex.OP-1 to Ex.OP-3 and closed the evidence.
4. We have heard the learned counsel for the parties and have also perused the written submissions placed on record by OP Consumer Complaint No.1020 of 2017 6 and their oral submissions as well. The first point of contention in this complaint raised by OP is that as to whether the complaint is within time or not. On this point, the counsel for OP oppugned the point of maintainability of this complaint being barred by time. Evidence on the record is required to be examined in this matter as to whether the complaint is within time or not. The counsel for OPs relied upon document Ex.C-7 on the record to the effect that OP made it clear in this document that the Villa was handed over to complainant on 10.05.2013 and defect liability period is uptil 10.05.2014 and as such it was not possible for OPs to undertake any such repairs in the Villa thereafter. The OPs asked the complainant to do the repair at his own end. The counsel for OPs submitted that the cause of action to file the complaint has accrued to complainant on the basis of this email Ex.C-7 sent by OPs to complainant on 10.05.2014. On the other hand, the counsel for complainant submitted that she filed original complaint before the District Forum Amritsar for seeking redressal of his grievance on 21.04.2016, which was returned on 26.10.2017 vide order Ex.C-1 of District Forum Amritsar for want of pecuniary jurisdiction to try it. The contention raised by OPs is misconceived as if the contention of OPs is assumed for the sake of arguments that cause of action accrued on 10.05.2014 on the basis of letter Ex.C-7, even then complaint was filed on this cause of action before the District Forum within two years period from 10.05.2014 by filing it on 21.04.2016. The complaint was thus filed within time before the District Forum Amritsar, vide complaint no.177 Consumer Complaint No.1020 of 2017 7 of 2016 on this cause of action by complainant. Somehow, the District Forum Amritsar expressed inability for want of pecuniary jurisdiction to try the complaint and returned it to complainant and thereafter he filed this compliant before this Commission on the same cause of action. Consequently, the contention of OPs is not accepted by us that complaint is barred by time and complaint is held to be within time because grievance was raised by complainant before the District Forum Amritsar within time of two years from the date of 10.05.2015, the refusal of OPs to carry out the repair work.
5. The next submission of counsel for OPs is that there is an arbitration clause in the allotment letter and hence consumer complaint is not maintainable. We find no force in this submission of OPs. The matter has been settled by larger bench of Hon'ble National Commission in consumer complaint no.701 of 2015, decided on 13.07.2017 titled as "Aftab Singh Vs. EMAAR MGF Land Limited and another". The National Commission has held in this authority that an arbitration clause in the afore-stated kind of Agreements between the complainants and the builder cannot circumscribe the jurisdiction of a Consumer Forum, notwithstanding the amendments made to Section 8 of the Arbitration Act, 1996. Against this order of the National Commission, Civil Appeal nos.23512-23513 of 2017 titled as EMAAR MGF Land Limited and another Vs. Aftab Singh" was filed by OP before the Top Court, which has been dismissed by the Apex Court, vide order dated 13.02.2018. Consequently, the existence of an arbitration clause is Consumer Complaint No.1020 of 2017 8 not a bar to resolution of this dispute by the Consumer Forum. Even otherwise, the Apex Court has also so held in "National Seeds Corporation Limited Vs. M. Madhusudhan Reddy and another"
2012(2)CLT-382/383 and in Fair Air Engineers (P) Ltd. vs. N. K. Modi (1996) 6 SCC 385 that Section 3 of C.P. Act gives additional remedy to consumers to avail of his remedy as per his choice. In view of Section 3 of C.P. Act conferring the additional remedy on the consumers and thus we repel this submission of OPs.
6. The next submission of counsel for OPs is that complainant received the possession and conveyance deed has already been executed in favour of the complainant and thereafter the complainant is estopped from filing the complaint especially in view of clause 6(b) and 6(c) of sale deed. The sale deed was executed by OPs in favour of complainant vide Ex.OP-1 on 26.05.2015. Undoubtedly, it contains recital that vendee after taking possession cannot raise the grievance. This clause seems to be in terrorem only, because the complainant has already put on the grievances of defects in the Villa in his feed back form at the time of delivery of possession on 09.04.2013, which is Ex.C-5 on the record. The complainant has specifically mentioned the cracks and other defects in the kitchen's cupboards in the feed back form on 09.04.2013, when possession was received by him of the Villa. He also wrote various emails to OPs pointing out the above defects insisting repair work in the construction, but they fell on deaf ears of OPs. The OPs relied upon clause 7(c) of general terms and Consumer Complaint No.1020 of 2017 9 conditions that complainant cannot raise any grievance after taking possession. Since, complainant put up the feed back to OPs at the time of delivery of possession, hence the submission of OPs is inconsequential on this point and is not accepted by us.
7. On the point of proofs of the cracks and development of fungus in the kitchen due to seepage of water problem, the complainant also adduced his evidence on the record. Ex.C-6 is email sent by him to OPs followed by email Ex.C-8 about the same problem existing thereat. The photographs also sent thereof to OPs vide Ex.C-9(iii) have been showing palpable cracks in the wall, but OPs failed to rectify the above defects in the Villa of the complainant. He also served legal notice upon OPs in this regard, vide legal notice dated 05.10.2015, but to no effect. The complainant also placed on record report of Er. Madan Joshi & Associates Ex.C-11 dated 17.02.2016 finding the leakage problem from the brick joints and falling of paint and spoilage of cubboards due to dampness and appearance of cracks at many places. The OPs failed to rebut this report of Er. Madan Joshi and Associates Ex.C-11 on the record proving the above defects in the construction. The OPs tendered in evidence affidavit of Gurbinder Singh, authorized representative of OPs Ex.OP-A denying any liability on the part of OPs. Since, the complainant has been agitating about above defects much earlier to execution of sale deed dated 12.06.2015, hence it cannot be said that complainant is now estopped from filing the complaint by clause 7 of general terms and conditions and clause 6(b) and 6(c) of the Consumer Complaint No.1020 of 2017 10 terms and conditions of the sale deed. The evidence of OPs has also been scanned by us on the record and it is not sufficient to rebut the evidence of the complainant on the record. Promoters/builders always show the green dreams to the consumers at the time of inviting applications, but subsequently these are not realized, as also happened in this case.
8. Consequently, we have come to this conclusion that the workmanship performed by OPs in the above Villa of complainant was not upto the mark. The consumer has to suffer and somehow the complainant received possession under compulsion and also conveyance deed was executed without rectification of above defects by OPs. The complainant was aggrieved with the above referred construction defects before the execution of sale deed and as such it cannot be said that he is now estopped from filing the complaint on the basis of execution of sale deed. The law relied upon by OPs in case "Gopal and another Vs. Deorao Ganpat Kaore and other" in revision petition no.1915 decided on 11.12.2015 is not applicable to the fact situation of the case. No concealment by means of any fraudulent action has come to the light of complainant and hence OPs cannot derive any benefit from law laid down by the Apex Court in case "S.P. Changalvaraya Naidu (dead) by LRs Vs. Jagannath (dead) by LRs" 1994 AIR(SC)-853 and law laid down in case "Oswal Fats and Oils Limited Vs. Additional Commissioner (Administration) Bareilly Division Bareilly" 2010(4)SCC-728. The above referred authorities are Consumer Complaint No.1020 of 2017 11 distinguishable from the fact situation of the case. The complaint filed by consumer with regard to the defects left in the construction by the builder is maintainable, because housing construction also falls into the category of service, as contemplated under Section 2(1)(o) of the CP Act, 1986.
9. As a result of our above discussion, we accept the complaint of the complainant by directing OPs to carry out the required repair of the Villa, as per the promised standards within period of 60 days from the date of receipt of certified copy of the order to the satisfaction of the complainant. We also direct OPs to pay composite amount of compensation of Rs.50,000/- for mental harassment and litigation expenses to complainant.
10. Arguments in this complaint were heard on 24.01.2019 and the order was reserved. The certified copies of the order be communicated to the parties, as per rules.
11 The complaint could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (RAJINDER KUMAR GOYAL) MEMBER February 01, 2019.
(MM)