State Consumer Disputes Redressal Commission
Mr.Joao Bosco Fernandes, vs M/S. Sanatan Financers And Real on 25 July, 2013
BEFORE THE GOA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PANAJI GOA C.C No.06 of 08 Mr.Joao Bosco Fernandes, Major of age, presently residing At 40 Coulsden, Marlprit Lane, Old Survey LR 5 2HB, London, temporary address; Colva, Salcete, Goa ...Complainant Vs. M/s. Sanatan Financers and Real Estate Pvt. Ltd., Through its Managing Director, Mr. Ankit Kumar, having its Regd. Office at S-15, Sanzgiri Arcade, Colva, Salcete, Goa. .Opposite Party Complainant is represented by Adv. Shri. G. B. Kamat OP is represented by Adv. Shri. A. B. Menezes Coram: Shri. Justice N.A. Britto, President Smt. Vidhya R. Gurav, Member Dated: 25/07/2013 ORDER
[Per Justice Shri. N. A. Britto, President] The complaint is filed on 02/07/2008 for the following reliefs:
(a) For repairs to the bungalow to be carried out as per list `L dated 18/10/06 to the satisfaction of the Complainant in the presence of an approved Civil Engineer or alternatively for refund of Rs.38,48,648/- with interest @ 12%.
(b) For handing over the relevant title documents pertaining to the bungalow and for assistance to the Complainant to get mutation done in the name of the Complainant.
(d) For Rs.15 lacs spent by the Complainant on hotel accommodation, communication with the OP, legal expenses etc.
(e) Compensation of Rs.10 lacs, and
(f) Costs of the complaint.
2. The Complainant is a NRI settled in London, U.K. On his search for a house in Goa on the net, Complainant came across one Nelson Haems of the Villa Company, agent of OP, who told the Complainant about the bungalow under construction in a plot of land admeasuring 260 sq.mts. in survey no.204/5 of St. Jose de Areal in Salcete Taluka and after seeking the details about the said bungalow the Complainant deposited with the said Nelson Haems 2000 on 29/07/05.
3. The said Nelson Haems sent a letter to the Complainant dated 05/09/05 and along with it two copies of the agreement for sale with a request to the Complainant to return the same to him duly initialed on each page and signed on the last page with a cheque of Rs.23,09,188.80. Accordingly, the Complainant sent the said amount and signed the said agreement dated 05/09/2005. In terms of the agreement the bungalow was to be constructed within a period of three months. The amount paid was acknowledged in the said agreement. The agreement contained, amongst others, a clause, which stipulated as follows:
the purchaser shall take possession of the said bungalow after inspecting the premises and at the time of taking possession, they shall bring to the notice of the builders existence of any defects which defects shall be remedied by the Builders. Once the purchasers take possession, they should not be heard of complaining of any defects.
4. The said agreement also stipulated that as a part of customer care services the Builder would undertake to make good defects in any of the items listed therein such as sewerage line choke ups, leaking roof, etc. (see clause 18) for a period of one year from the date of taking possession.
The Complainant visited Goa on 30/10/2005 and the correspondence exchanged between the parties through emails would show that the Complainant was keen to complete the entire transaction by 30/10/2005. The Complainant was informed that the work of the bungalow was in full swing but completion would depend on stopping of rain as it was raining continuously or else it would be completed by 30/11/2005, definitely.
5. The Complainant took possession of the bungalow on 31/12/2005. In the words of Complainants wife Pat Fernandes after much discussion they signed all the documents on 31st of December and issued two cheques. We have been given the keys to the bungalow. The OPs director in his affidavit in evidence has also stated that the construction of the suit bungalow was almost complete when the agreement was entered into and the Complainants wife took the key of the bungalow from the OP in December
05. This aspect of taking over possession is conspicuously absent from the complaint.
6. One of the cheques given by the Complainant bounced and the Complainant got a call from OPs director Shri Ankit Kumar on 02/01/2006 followed by advocates notice dated 12/01/06 informing the Complainant and his wife that the cheque was dishonoured on 02/01/06 for insufficient funds. Complainant was called upon to pay Rs.16,73,115/- within 15 days failing which proceedings under section 138 of Negotiable Instruments Act would be initiated. The said letter was replied to by the Complainants on 17/01/06 stating that the OP had sent them an email on 04/01/2006 advising that all the work was completed and that they had asked their son-in-law to inspect the property and who had informed them that the work was not complete. It was also stated that in case the OP had asked for the correct amount of Rs.15,85,028.30 the cheque would not have been returned as there was sufficient funds to cover the said cheque which they could prove with their Bank statement.
7. We have not been able to spot on record any email of the OP after 04/01/06 or for that matter of the Complainant on or after that date except an email of Complainants wife dated 04/01/06 addressed to the said Nelson Haem which says that:
We received a call from Ankit on 2nd of January advising that one of the cheques I had given them had bounced due to insufficient funds. I have now checked this with the Bank and unfortunately our money had not been credited in time for the cheques to clear. For this I apologize
8. This letter would expose the falsity of letter dated 17/01/06 and para 8 of the complaint.
9. The sale deed between the Complainant and the OP was executed on 16/03/06. It appears prior to that a sum of Rs.10,57,115.90 was paid to the OP on 13/03/06. By virtue of the sale deed the plot along with the bungalow were conveyed to the Complainant and the Complainant was required to enter his name on the survey records. One of the recitals in the said deed states that the bungalow was duly constructed. No reference is made to any pending works.
10. In the above background, as reflected from the record, the case of the Complainant is that they saw the bungalow in October 05 and they requested the said Ankit Kumar to make some alterations to the said bungalow by way of extension to the kitchen for which he agreed, for which a separate bill has been paid by the Complainant and the Complainant was told that the possession would be handed over by December 05. According to the Complainant the bungalow was not constructed in the manner he was told and therefore upon his return to London the Complainant and his wife were in contact with the OP through emails and on 01/12/05 an email was sent (copy not on record) to remind the OP about the completion of the list of work of the bungalow and the OP sent an email (copy not on record) to Mrs. Pat Fernandes, wife of the Complainant, informing that the OP had completed the work as per list given by her and that the Complainant should come to Goa towards the end of December. According to the Complainant, he sent an email on 06/12/05 (not on record) to confirm the final amount due so that the same can be paid to the OP and the OP replied to the email specifying the amount to be paid to him. According to the Complainant they came down to Goa on 11/12/2005 and issued a cheque on 02/01/2006 for Rs.16,73,115/- and after issuing the said cheque they came to know that the bungalow was not completed as per the instructions and as such they informed their Bankers to stop the payment whereupon the OPs lawyer sent a legal notice which was replied to by reply dated 17/01/2006 and in the meantime an email was sent to Mr. Haems dated 04/01/06 informing about the incomplete work which was in turn forwarded to the OP and the OP in turn informed them by his email (not on record) stating that the work was completed and the OP by email dated 05/01/06 (copy not on record) told them to send the payment. According to the Complainant, as the OP was pressurizing the Complainant to make the payment they finally executed the sale deed on 16/03/06. According to the Complainant, before the execution of the sale deed the Complainant with his family visited Goa by spending huge amounts in lacs on their transport, food, accommodation, etc. According to the Complainant the sale deed was executed without handing over important documents like construction licence, approved construction plan, survey plans and most importantly the occupancy certificate.
As per the Complainant, he went ahead with the execution of the sale deed on the assurance given by the OP that he would make all efforts to procure relevant documents immediately and complete the bungalow as per their wish.
11. The case of the Complainant is further that somewhere in the month of October 06 (18/10/06?) when the wife of the Complainant and their daughter visited Goa, they were shocked to see the gross condition of the newly constructed bungalow. It was in worst possible condition with water leaking, water accumulated on the floor, damp walls surfaced with algae, paint chipping off, faulty electrical fittings, etc. It is the case of the complainant that his wife and daughter approached the office of the OP upon which the OP took the keys of the bungalow and assured them of doing the needful by carrying out necessary repairs and the wife of the Complainant gave a list of works to be completed which list the OP refused to acknowledge. According to the Complainant the Complainant clicked some photographs on 19/10/06 depicting the pathetic state of the bungalow which clearly illustrates the negligent and fraudulent conduct of the OP in delivering a defective bungalow.
12. According to the Complainant, their attorney sent a letter to the OP dated 08/06/07 (it is not even signed by attorney John Fernandes).
By this letter the OP was informed that there was water leakage and water oozing out from the floor which show that the bungalow was not constructed properly and the material was defective. He also enclosed a copy of the list of work to be done in the bungalow (list not on record) and requested copies of original occupancy certificate, approved construction licence, etc. This letter was replied to by the OP through his advocate on 19/06/07 in which the OP stated that the Complainant had kept some windows open and the water must have come in through the said open windows. The Complainant was also informed that some of his labourers had gone on the roof to fix up a solar heater and in that process damage was caused to the roof. It was stated that OP never agreed to carry out any repairs as alleged by the Complainant.
The Complainant was further informed that the construction licence and other documents were in possession of the Complainant and were given to him at the time of execution of the sale deed.
Regarding occupancy certificate, it was stated that the Complainant had taken it upon himself that he would obtain the said occupancy certificate.
13. Complainants advocate addressed another letter to the OP on 09/07/07 disputing that the Complainant had agreed to obtain the occupancy certificate and calling upon the OP to arrange for one. This letter was replied to by the OP on 25/07/07 stating that the OP was standing by all the statements made in his advocates reply dated 19/07/07. The Complainant was informed that the documents sought for were in possession of the Complainant and that the same were public documents and were readily available with the authorities. Regarding the occupancy certificate, it was stated that out of humanitarian consideration it would be applied for and dispatched to the Complainant as and when available. The Complainant then addressed another letter dated 20/08/07 requesting the OP for xerox copies of the said documents as they were not able to obtain the same for want of details. The letter also mentioned that the Complainants wife had prepared a list of all the things that needed repairs to the bungalow (was it the same list dated 18/10/06?) Ultimately the Complainant sent legal notice dated 14/12/07 before filing the complaint.
14. The complaint has been resisted by the OP.
15. The case of the OP, in short, is that in the course of the construction of the bungalow the OP had done painting, tiling, sanitary fittings, etc. according to Complainants colour and quality choice and that it was agreed in the agreement dated 05/09/05 that the Complainant would take possession only after inspecting the premises; that even after completion of the bungalow there was delay in arranging the second part of payment; the Complainant executed the sale deed on 16/03/06 only after inspecting the bungalow and after fully satisfying with the final construction and the finishing; that the OP had paid house tax of Rs.727/- on 28/12/07, infrastructure tax of Rs.5,814/- and had obtained the completion certificate from the Senior Town Planning on 23/08/07 which shows that the bungalow was checked and found fully completed as per approved plans; that the occupancy certificate delivered to Complainants advocate Shri Cruz on 03/01/08; that the OP informed the Complainant through advocate as well as personally that some windows of the bungalow were kept open, pipe for the rain water was clogged on terrace which was leading to water logging on the roof and about the bushes, weeds which had grown around the bungalow but the Complainant did not pay any attention; that the OP took 11 photographs on 15/08/08 showing the present condition of the said bungalow because of negligence of the Complainant. According to the OP, the Complainant is not interested in the said bungalow and that is the reason why the Complainant has neglected to maintain the same and wants to pass on the burden to the OP by claiming the amount paid for the bungalow and also for interest and damages.
16. We have perused the records and heard the submission of lr. Advocates on behalf of the parties and also perused the written submissions.
17. Shri Kamat, lr. Advocate on behalf of the Complainant would submit that they took over the possession with sale deed on 16/03/06 on the assurance that the deficiencies would be rectified by the OP. Lr. advocate submits that as many as 23 deficiencies were pointed out to the OP as per list `L dated 18/10/2006. According to him, the said deficiencies ought to have been rectified by the OP atleast as per the report of Engineer Shri Kakule. Lr. advocate submits that the deficiencies noticed cannot be attributed to the Complainant. Shri Kamat submits that the Complainant is entitled to point out the deficiencies even after taking over the possession and in this regard has placed reliance on HP Housing and Urban Development and Authority vs. Ravigan, 2010 4 CPR 428 and also on the decisions in Faquir Chand Gulath, 2008 3 CPR 335 and P. Mohanbhat, 2009 2 CPR 165.
Lr. advocate submits that the deficiencies pointed out at sl. No.1, 4, 5, 6, 7, 8, 9, 13, 14 & 15 as specified in the inspection report of Shri Kakule would be required to be rectified by the OP.
18. On the other hand, Shri A. B. Menezes, the lr. advocate of the OP, would submit that the statements of para 16 of the complaint are vague and if at all the Complainant had any complaint about any deficiency it ought to have been in relation to extension of the kitchen, at the most as pleaded in parra 5 of the complaint. Lr. advocate submits that the bungalow was ready for occupation in October 05 and in terms of the stipulations in the agreement for purchase dated 05/09/05 the Complainant cannot be heard to complain of any defects after taking possession. Shri Menezes would submit that the possession of the bungalow was with the Complainant from 31/12/05 till the sale deed was executed on 16/03/06 and the Complainant could have inspected the same or got a report prepared so that if there were any defects or deficiencies the same could be pointed out to the OP and the OP could have rectified the same. Lr. advocate would submit that the photographs taken by the OP on 15/08/08 would show that the bungalow has not been looked after by the Complainant as a result of which creepers have grown over the walls and some of the creepers have even entered through the windows and the bungalow itself gives a picture of a haunted house. Lr. advocate would submit the OP could not be expected to maintain the bungalow after possession was given to the Complainant and after the sale deed was made in his favour. Lr. advocate would submit that the Complainant is asking for the moon. Lr. Advocate submits that the present condition of the bungalow is entirely due to the negligence of the Complainant in maintaining the same.
19. The complainant filed his affidavit in evidence on 08/12/08 and then filed an application dated 11/02/09 for production of 33 photographs. These photographs as per application, were taken just prior to the filing of the complaint. As per the complaint, the photos were taken on 19/10/06. The photographs were allowed to be produced by order dated 24/07/09. If we go by the avernment in the complaint, the photos would reflect the condition of the bungalow after passage of one monsoon and if we go by the avernments in the application, the photos would reflect the condition of the bungalow after almost three monsoons!
20. The Complainant also filed an application dated 11/02/09 for the appointment of a Commissioner and the same was allowed by order dated 24/07/09 and the Executive Engineer, Buildings, was appointed as a Commissioner. The said Executive Engineer declined to execute the Commission, inter alia, on the grounds that complainants attorney Shri. Joao Fernandes had interfered with his work. Thereafter, Engineer, Shri. Mahendra S. Kakule was appointed as a Commissioner, by order dated 29/10/09 and he submitted his report dated 06/02/10 after visiting the site on 23/01/10.
21. Thereafter the OP filed an application dated 12/03/10 for the cross examination of the complainant as well as the said Commissioner Engineer Shri. Kakule. The said application was allowed by this Commission by order dated 9/4/10. The cross examination was to be done through a questionnaire furnished to the complainant before 30/05/10. A questionnaire was submitted to the complainant on 06/05/11 to be answered by him by the next date on 23/06/11. The case was then adjourned to 12/07/11 on which day a last and final opportunity was given to the complainant to reply to the questionnaire. On 10/08/11 the complainant sought time.
The complaint was then again adjourned on 26/09/11, 30/09/11, 04/11/11 and 22/11/11 on which day the matter was fixed for arguments as the complainant had failed to avail several last and final opportunities given to him to reply to the questionnaire.
22. The Commissioner answered his questionnaire and in answers to the questionnaire the Commissioner admitted that the bungalow was not being maintained properly but stated that he would not be in a position to say whether the bungalow was not being maintained properly four years prior to his inspection. The Commissioner admitted that wild plants, shrubs had grown around the bungalow touching the walls at the time of inspection and further admitted that the bungalow was not occupied since it was constructed.
The Commissioner also admitted that at the time of inspection some windows were slightly open and further admitted that some of the creepers were grown around the walls but had not entered through window. Regarding the peeling of paint of the external wall surface the Commissioner stated that it was not due to weather and normal wear and tear but did not state the reason for peeling of the same. Regarding the meter box and loose wires, whether they were disconnected by the electricity department, the Commissioner stated that he was a civil engineer and was not in a position to comment the same. Regarding the gaps between the aluminium frames and the walls the Commissioner stated that they are to be filled by the contractor/builder at the time of construction. Regarding the dampness, the Commissioner stated that they were not due to the water which might have entered through the open windows but did not state the real cause for the same. Regarding the leakage of the roof, the Commissioner stated that it could be due to the drilling of holes made in the RCC flat slab roof above the staircase block but it was not possible to state precisely as to which damp spots might have appeared due to seepage of water into the slab through the holes made in the said slab above the staircase block.
23. Shri. Ankit Kumar, Director of OP filed his affidavit in evidence on 18/2/12 and that of the contractor Shri. Amonkar, on 14/3/12.
24. At the outset, we need to discard the affidavit in evidence of the Complainant on his failure to answer the questions posed to him through interrogatories.
25. We fail to understand as why the Complainant was interested to rush through and take the possession of the bungalow on 30th October 2005 when the agreement dated 05/09/05 had stipulated that the bungalow would be completed in 3 months or why he rushed through and obtained the possession of the same on 31st December 2005, in case the same was incomplete. We also fail to understand why the Complainant thereafter did not get the bungalow inspected for defects or deficiencies, if any, as conveyed by him, to the OPs advocate by letter dated 17/01/06. We also fail to understand why the Complainant rushed through a sale deed on 16/03/06, if there were any deficiencies in the construction of the bungalow. We also fail to understand as to why the complainant issued a cheque on 02/01/06 without verifying whether the works conveyed to be done by email dated 01/12/05 were done or not.
26. The Complainant as prudent consumer ought to have known that he had signed an agreement with the OP and he had agreed that once he took possession of the bungalow, he would not be heard of complaining of any defects. The least which was expected of the complainant is to have prepared a list similar to list L dated 18/10/06 either on 31/12/05 or 16/03/06 and handover the same to the OP under acknowledgement with an assurance from the OP to complete the deficiencies, if any. Admittedly, the deficiencies pointed out in letter dated 4/1/06 written to Mr. Haems are not the deficiencies which are being pointed out in list L dated 18/10/06 and we can only assume that the said deficiencies in letter dated 4/1/06 were taken care of by the OP.
27. It is now well settled that the Indian Contract Act applies to all including consumers under C.P. Act, 1986 as held by the Apex Court in Marine Container Services South Pvt. Ltd., vs. Go go Garments , AIR 1999 SC 80. It is also well settled that when a person signs a document which contains certain contractual terms such person is bound by the said terms and it is for such a person to show that there was exception, if any, not to be bound by such terms (see Bharati Knitting Company, AIR 1996 SC 2508). It is also well settled that when terms of a transaction are reduced in writing no amount of evidence can be led, and if led can be accepted, either to contradict the terms or to vary or to add to its terms (see M/s. Bhandari Construction vs. Gopal Upadhya, AIR 2007 SC 1441).
28. The Complainant had stated in para 23 of the complaint that the photographs were clicked on 19/10/06 (newspaper is of that date) but in his application for production of the said photographs the complainant had stated that they were taken just before the filing of the complaint, which was filed on 2/7/08. If at all the said photographs show the pathetic state of the bungalow of the complainant, the Complainant can blame no one except himself for not taking care of his bungalow and leaving it exposed to the vagaries of monsoons by keeping the windows open and allowing water to come through holes drilled into the ceiling. When bungalows are unoccupied, not lived in, not aired, kept closed, it is not unknown that the walls develop tiny cracks and one certainly does not require a rocket scientist to give an opinion on the same. The dampness on the walls can be attributed to the water on the floor and moisture through open windows during the monsoons. Even the plaster filling between the window frames and the wall must have fallen due to the said wet conditions of the bungalow. The Commissioner has admitted that water leakage must have occurred because of the drilling of holes in the staircase block.
It is not the case of the Complainant that the OP was required to maintain the bungalow after the Complainant had taken possession of the same or after the sale deed was executed in favour of the Complainant.
29. On the facts of the case, in our view, no relief can be legally given to the Complainant.
On principle the Complainant is not entitled to any reliefs. The case of Ravi Bushan (supra) is not applicable to the facts of this case as in that case there was no agreement between the parties that once possession is taken the purchaser would not be heard to complain of defects. The complainant seems to take everything for granted. In support of prayer (4) the Complainant has produced nothing, not even a receipt.
Clause (7) of the sale deed shows that it is the Complainant who was expected to get the survey records changed in his name. That can be done on the basis of the sale deed itself and the Complainant does not require any assistance from the OP. The OP has stated on affidavit that the documents were already handed over to the Complainant. Occupancy Certificate has also now been obtained, as explained by the OP, and has been handed over to the Complainant though the Complainant has sought no relief as regards the same.
30. Nevertheless, we take note of the fact that on 11/03/13 the OP had made an offer to the Complainant to get the bungalow painted from inside and fill the gaps in between the window frames. We, therefore would like to make the said offer into the order of this Commission and direct the OP to paint the bungalow of the Complainant from inside and fill in the gaps in between the window frames within a period of three months, leaving the parties to bear their own costs of this complaint.
Smt. Vidhya R. Gurav] [Justice Shri N. A. Britto] Member President /lm /np