State Consumer Disputes Redressal Commission
Mr.Nandkumar Baburao Tawade vs Prakash Dashrath Nevare on 15 July, 2015
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FA/359/2013
MAHARASHTRA STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MUMBAI CIRCUIT BENCH AT AURANGABAD.
Date of filing : 27/11/2013
Date of order : 15/07/2015
FIRST APPEAL No : 359 of 2013.
IN COMPLAINT CASE NO : 766 OF 2008.
DISTRICT CONSUMER FORUM: AURANGABAD.
1. Mr.Nandkumar Baburao Tawade
Gokuldham building Near.Kada Office,
Gajanan Maharaj Mandir to Seven hill road,
Aurangabad 431 005.
2. Dilip Pannalal Dahale
Both R/o.N-1, Plot No. 113/A Cidco,
Aurangabad 431 003. APPELLANTS
VERSUS
1. Prakash Dashrath Nevare
2. Devidas Mohan Rathod.
3. Dr.Prakash Sambhaji Ujjagare.
4. Vijay Anand Adhar Wagh.
5. Yadavrao Pandurang Nikwade.
6. Sow.Shalinibai Hanumantrao Kulkarni.
7. Dnyaneshwar Gangaram Dhumal.
8. Ramrao Shahuba Gavale.
9. Sow.Vijaya Sheshrao Kulkarni.
10. Uddhav Jagannath Jadhav.
11. Prathviraj Devidas Chavan.
12. Ramesh Asaram Bochare.
13. Abhay Umakant Bombale.
14. Shripad Jivanrao Gurnalkar.
15. Raghunath Gitaji Jagtap.
16. Kashinath Savaji Khobragade.
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FA/359/2013
17. Tukaram Maruti Kamble.
18. Ramesh Jagannath Padaswan
All R/o. Gut No.96, Renukanagar,
Deolai Parisar, Beed By Pass road,
Aurangabad 431 005. RESPONDENTS
Coram : Mr.S.M.Shembole, Hon'ble Presiding Judicial Member.
Mr.K.B.Gawali, Hon'ble Member.
Present : Adv.Shri.Amit Yadkikar for the appellants.
Adv.Shri.Rahul Joshi for Respondents.
JUDJGMENT ( Delivered on 15 th July 2015 ) Per. Mr.K.B.Gawali, Hon'ble Member.
1. This appeal is directed against the judgment and order dated 22/10/2013 passed by the Dist. Consumer Forum Aurangabad in CC.No. 7665/2008. The appellants are the original opponent Nos. 1 & 2 whereas respondents are the original complainants. For the sake of brevity the appellants are hereinafter termed as the "opponents" and respondents as the "Complainants".
2. The brief facts giving rise to this appeal are as under:
The opponents are the developers and builders who run their business under the name and style "Akshay Developers" at Aurangabad. In the year 2003 the opponents had launched a scheme of development of bungalows in G.No.96 of village Devlai 3 FA/359/2013 wherein they had proposed construction of 24 independent bungalows. As a part of advertisement of the said scheme they had published broacher giving details of their scheme. The complainants agreed to purchase these bungalows separately and accordingly booked the bungalows by paying the booking amount. As per agreement the complainants paid the entire amount of consideration to the opponents and on completion of construction, received the possession of their respective bungalows. However, after receiving possession of bungalows the complainants noticed certain defects in the construction and also in the scheme. According to the complainants, the opponents did not provide the amenities as agreed and also as per the information given in the broacher i.e. (i) Independent bore well for drinking water to each bungalow (ii) Internal asphalt road. (iii) Open space for the colony
(iv) West water disposal system. (v) Quality construction of the bungalow (vi) NA permission from the Collector (vii) Completion certificate etc. According to the complainants the opponents have decepted them by not proving the aforesaid amenities and also by not doing the quality construction of their bungalow. Due to non providing of aforesaid amentias they had to face so many difficulties. During rainy season their children's have to find there way to school through the muddy road, shortage of drinking water, the west water flowing on the road and thus creating danger to their health, there are cracks to the walls of the bungalows, electric fittings are of 4 FA/359/2013 substandard quality etc. Therefore the complainant by their letter dated 07/08/2008 asked the opponents to provide amentias as agreed and remove the defects and also clear the dues of property taxes etc. But the opponents neglected their request and therefore complainant Nos. 1 to 18 jointly filed the complaint dated 26/11/2008 and thereafter also filed amended complaint dated 25/08/2009 through their power of attorney namely Shri.Prakash Dashrath Nevare and Shri.Devidas Mohan Rathod whereby alleging deficiency in service against the opponents claimed compensation and also direction to comply the terms and conditions of the agreement.
3. The opponents appeared before the Dist. Consumer Forum and by way of their written version denied in toto the allegations made by the complainants. At the outset they challenged the complaint on the ground of limitation as provided U/Sec. 24 (A) of the Consumer Protection Act. They have also submitted a statement showing the details of date of agreement to sale, date of sale deed, date of possession and the delay as committed by the complainants in filing of the complaint. It was further submitted that the complainant namely Smt. S.S.Kulkarni and Shri.Udhav Jaganath Jadhav have not purchased their bungalows from the opponents and hence, they were not their "Consumers" having no right to file complaint under Consumer Protection Act. There is no "agreement to sale" executed and also conveyance deed effected in favour of complainants namely Shri.Rahul Ramrao Gavale, Shri. Kailas 5 FA/359/2013 Devidas Chavan, Shri. Dattatraya Jagtap and Shri.Jivanrao Gurnalkar. Therefore they had no right to file complaint. That the information broacher was also not published by them and hence whatever assurances are made in the book let are not binding upon them. It was also submitted that the bungalows in question were constructed with good quality as per the lay out as approved by Gram Panchayat vide letter dated 18/12/2002. As there was no existing drainage system opponents have provided septic tanks with soakpit to each bungalows and the work of getting completing certificate was also in progress. There was also pakka road in the colony. Electric fittings were also good. They have cleared the Gram Panchayat tax and there was no any outstanding dues towards the bank loan. The opponents therefore submitted that the complainants had no cause of action for filing of complaint but only to harash the opponents, the complainants have filed this complaint which be dismissed with cost.
4. The Dist. Consumer Forum considering the evidence on record and on hearing both sides partly allowed the complaint and by way of their impugned judgment and order dated 06/07/2010 directed the opponents to repair the bungalows as pointed out by the Court Commissioner, to obtain NA from collector and to obtain completion certificate. In addition the opponents were also directed to provide no dues certificate of the bank regarding clearance of loan and further pay compensation of Rs 25,000/- and cost of Rs 1000/- to each of the complainants.
6FA/359/2013 The Dist. Consumer Forum on the application of the complainants had appointed Architect Shri.Deelip Sarda as Court Commissioner who visited the spot and submitted his report dated 17/03/2010 whereby he supported the complaint of the complainants. It is in keeping with the report of the Court Commissioner and also considering the letter issued by Collector stating therein that no N.A. permission was given for the said land, the Dist. Consumer Forum passed the impugned judgment and order.
5. Feeling aggrieved by the said judgment and order the opponents filed FA.No.576/2010 dated 06/09/2011 in this Commission. This appeal was disposed of by order dated 02/09/2011 whereby appeal came tobe dismissed. The opponents further went in revision against the order passed by this Bench with Hon'ble National Commission bearing RP.No.3971/2011. Hon'ble National Commission decided the revision petition by it's order dated 06/12/2012 whereby the order dated 02/09/2011 passed by this Commission is set aside and the matter is remanded back to this Commission for deciding the point of limitation. Accordingly the directions of Hon'ble National Commission, parties were heard and by considering this Commission's order dated 25/06/2013 appeal was allowed and by setting aside the impugned judgment and order of the Dist. Consumer Forum, matter was remanded back to the Dist. Consumer Forum with the direction to decide the point of 7 FA/359/2013 limitation and also application dated 19/05/2010 disputing the commissioner's report and to decide the complaint afresh by giving opportunity to both the parties. The Dist. Consumer Forum as per the directions given by this Commission by way of order dated 25/06/2013 and after hearing both the parties has passed the impugned judgment and order dated 22/10/2013 which is a subject matter of present appeal.
6. On 06/07/2015 the matter was taken up for final hearing Adv. Shri. S.R.malani for the appellant, Adv.Shri.S.T.Agrawal for the respondent No. 1 and Adv. Shri. Bolkar for the respondent No. 2 were present. The counsel for both sides have already submitted their written notes of arguments. We heard them finally and adjourned the matter for judgment.
7. The Ld. Counsel Shri. Amit Yadkikar for the appellant mainly contended that the complaint filed by the complainants is barred by limitation and therefore not maintainable. On the basis of statement submitted by opponents, he submitted that out of the 18 complainants, the complainants at Sr. Nos. 6 and 10 namely Sow. Kulkarni S.H and Shri. Jadhav U.J did not purchase the bungalows from the opponents and hence they are not consumer. He further submitted that the complainant Nos. 1 to 3, 7 to 9 and 11 to 18 i.e. in all 14 were not entitled to file any complaint as they had taken possession of the property and also got sale deed executed in their favour much before two years from the date of filing of the 8 FA/359/2013 complaint dt. 26/11/2008. It is his contention that the date of actual possession of the premises or the sale deed which were ever is earlier will have tobe considered as the date of cause of action. In support of his aforesaid contention he relied on the following judgments.
1. Pushpa Builders Flat Buyers Association -V/s- Pushpa Builders Ltd II (2002) CPJ (NC)
2. Mrs.Sunita Mohite -V/s- Mahmad Abbas Pakhali and Anr.
III (2003) CPJ 102 (NC)
3. P.U.D.A -V/s- Jaswinder Singh IV (2006) CPJ 31 / 2007 (i) CLT 37 (NC)
4. State Bank of India -V/s- B.S. Agricultural Industries AIR 2009 Supreme Court 2210.
8. The Ld. Counsel Shri. Yadkikar for the complainants further submitted that the Dist. Consumer Forum by relying on the complainant's contention that there is no valid NA permission and that the completion certificate of the suit property has not been obtained, the cause of action is continuous, cannot be sustained. It is his contention that the NA permission obtained U/Sec. 45 of the MLRC from Tahsildar Aurangabad was mentioned in the agreement to sale and a copy of the same was also attached to the said 9 FA/359/2013 agreement. Therefore the complainants had the knowledge about the said NA permission and hence the cause of action cannot be continued for further period. It is also his contention that the property being situated within the limit of village Deolai had not attracted the provisions of Maharashtra Ownership of Flat Act, 1963 (MOFA) and therefore it was not obligatory for the opponents to get the completion certificate. He further submitted that the correspondence between the parties prior to filing of the complaint cannot also extend the cause of action. He also submitted that the complainants at Sr.Nos. 4 and 5 though took possession of their bungalows, they had given in writing that they were fully satisfied about the construction quality, the water facility and other amentias available at side. The complainant Nos. 8, 10 and 18 have filed affidavits for getting their name deleted from the complaint.
9. As regards the commissioner's report, Ld. Counsel Shri. Yadakikar submitted that both the opponents had requested the commissioner to postpone the date of inspection for their personal difficulty. But the commissioner visited the spot and submitted his report. Therefore the opponents had requested the Dist. Consumer Forum for cross examination of the court commissioner. However, their applications was not considered by the Dist. Consumer Forum. Therefore the commissioner Shri.Deelip Sarada's report is not binding upon the opponents. He also contended that the Dist. Consumer Forum has relied upon the affidavit filed by one Shri.Rupchandra Chavan dated 29/08/2013 despite objection 10 FA/359/2013 raised by the opponent. He thus contended that the complaint is not maintainable on both the points of limitation and the point of merit and therefore the same deserves tobe dismissed with cost.
10. On the other hand Ld. Counsel Shri. Rahul Joshi for the complainant submitted that the opponents not only cheated the complainants but also followed illegal trade practice. That the opponents even prior to construction of the bungalows did not take permission from the collector and without permission constructed the houses. He further submitted that after passing of the order by the Dist. Consumer Forum the opponents filed application dated 17/08/2010 to the Collector from Aurangabad for grant of NA permission to the land in question. Therefore he contended that the opponents admitted the order passed by the Dist. Consumer Forum. He also submitted that, the opponents did not give completion certificate to the complainants as per MOFA Act as observed by the Dist. Consumer Forum. He therefore contended that there is a "continuous cause of action" and hence the complaint filed was well within limitation. It is also his contention that the Dist. Consumer Forum while deciding the case has rightly appreciated the report of the Court Commissioner and his finding. That, as per report of the said court commissioner and affidavit dated 29/08/2013 of one Shri. Santosh Rupchand Chavan, a Civil Engineer are sufficient to prove that the deficiency in service on the part of the opponents as narrated in the complaint it till in existance. He therefore contended that, the appeal filed by the 11 FA/359/2013 opponents having no merit be dismissed by confirming the impugned judgment and order.
11. We have carefully considered the written notes of arguments and also documents placed on record by both the parties containing copies of the complaint, amendment application to the complaint, the broacher giving information about the said bungalow scheme, written version filed by the opponents along with statement showing the details of agreement to sale, sale deed, date of possession etc. the earlier judgment and orders passed by the Dist. Consumer Forum by this Commission and also Hon'ble National Commission, appeal memo, and other documents.
12. As per the order dated 12/02/2012 passed by the Hon'ble National Commission, before going in to the merit of the case we have to decide first the point of limitation. As mentioned above it has been the first and foremost contention of the opponents that the complaint itself was hopelessly time barred and there was no application filed by the complainants to condone the delay caused in filing of the complaint.
13. In order to decide whether the complaint is barred by limitation we have to first determine the date of cause of action. Accordingly to the opponents the "date of possession" and the date of of sale deed which ever is earlier is the date of cause of action". As argued by the Ld. Counsel Shri. Yadkikar for the opponents that 12 FA/359/2013 the complainants were bound to file the complaint within two years from the date of taking possession of the property or within two years from the date of sale deed which ever was earlier. The deficiencies alleged in service of the opponents such as (1) There is no individual bore well for drinking water (2) No pacca asphalt road (3) No common open phase (4) No arrangement for drainage (5) Defective construction of bungalows could have been noticed immediately after taking possession. Hence the date of possession can be taken as the cause of action.
14. However, complainant's Ld. Counsel Shri. Rahul Joshi contended that the opponents have not taken N.A. permission from the Collector before taking up the project in the said land as required by the statute and also not obtained completion certificate before giving possession as per MOFA Act. It is further submitted that the opponents have filed application dated 17/08/2010 to the Collector Aurangabad for NA permission as per order dated 06/07/2010 of the Dist. Consumer Forum and concluded that the opponents have already admitted the order passed by the Dist. Consumer Forum Aurangabad. The Ld. Counsel Shri. Joshi therefore contended that there is a "continuous cause of action".
15. However, this contention of Ld. Counsel Shri. Joshi cannot be sustained and hence not accepted because as pointed out by Ld. Counsel Shri. Yadkikar for the opponents the NA permission as granted by Tahsildar U/Sec. 45 of the MLR Code, was mentioned 13 FA/359/2013 in the agreement to sale which were executed in favour of the individual complainants during the period from 2003 to 2005. Therefore, the complainants were aware of the fact that the NA permission as referred by the opponents is already mentioned in their agreement to sale. It is not the case of the complainants that the opponents had told them to have obtained NA permission U/sec. 44 from the Collector but produced on record NA permission issued by Tahsildar U/Sec. 45 of MLRC. It is also not the case of the complainants that they have received any notice or any action is taken by revenue authority for not having obtained NA permission U/sec. 44 from the Collector. Therefore there cannot be any cause of action due to non receipt of N.A. permission U/Sec. 44 of the MLR code.
16. As regards completion certificate U/sec. MOFA Act, it is already made clear by the Ld. Counsel Shri. Yadkikar that the land under bungalows being situated in Grampanchayat area, the provisions of MOFA Act were not applicable. There was also no specific provision for obtaining "completion certificate" under the Grampanchayat Act, therefore the opponents cannot be held responsible. Thus considering both the grounds of NA permission and completing certificate, there cannot be "continuous cause of action".
17. It is further tobe noted that the complainants for the first time by their application dated 07/08/2008 i.e. after about the period of 14 FA/359/2013 3 years have made complaint about the alleged deficiencies in service on the part of the opponents. Secondly, it is well settled provision that by making correspondence the cause of date cannot be extended.
18. It can therefore be concluded that in the present case as per the statement given by the opponents the dates of possession of the complainants are in between 2004 to 2005. It is only in case of complainant Nos. 4 and 5 namely one Shri.A.V.Wagh and Shri.Y.P.Nikwade, who have taken possession in the year 2007, their complaint is within limitation. However, the complainant Shri. Nikwade has already giving undertaking that he has no any grievance against the opponents. In the case of complainant Shri.Wagh though this complaint is within limitation he cannot alone claim common amenities, and secondly there is no any pleading about his individual complaint in respect of defects in his own bungalows. The result is the present complaint of the complainant is submitted after the period of two years and therefore it is grossly time barred. The Sec. 24 (a) of Consumer Protection Act provides that "The Dist. Consumer Forum, the State Commission OR the National Commission shall not admit the complaint unless it is filed within two years from the date on which the cause of action has arisen. It further provides that a complaint may be entertained after the said period if the complainants satisfy the Dist. Consumer Forum or the Commission that he had sufficient cause for not filing the complaint within such period". In the 15 FA/359/2013 present case the complainants have filed the complaint after the limitation period of two years and that two without delay condonation application. Therefore the complaint being barred by limitation is not maintainable. Hence, we do not find it necessary to go in to the merit of the case.
19. The case laws as referred by Ld. Counsel Shri. Yadkikar for the opponents also strongly support his contention that the complaint filed after two years period is barred by limitation and cannot be entertained.
20 In view of the aforesaid facts and observations it is abundantly clear that the complaint of the present complainants is grosssly barred by limitation and therefore not maintainable. There being substantial merits in the appeal it deserves tobe allowed. The impugned judgment and order passed by the Dist. Consumer Forum being based on wrong findings and interpretation about continuous cause of action requires tobe set aside. The result is appeal succeeds. We therefore pass the following order.
ORDER
1. Appeal is allowed.
2. The impugned judgment and order passed by the Dist.
Consumer Forum is hereby quashed and set aside.
3. The complaint stands dismissed.
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4. No order as to cost.
5. Copies of the judgment and order be sent to both the parties.
Sd/- Sd/-
K.B.Gawali S.M.Shembole
Member Presiding Judicial Member
A.H.Patil
Steno H.G.
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FA/359/2013