State Consumer Disputes Redressal Commission
Ms. Jennifer B. Packham, vs M/S Asian Constructions, on 4 September, 2009
THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION PANAJI GOA. Present: Smt. Sandra Vaz e Correia Presiding Member Smt. Caroline Collasso Member Complaint No. 4/2007 Ms. Jennifer B. Packham, Dona Rosa, Flat Nos.F.5(a) & F-5(b), 1 Fatrade, Varca, Salcete, Goa 403721. Complainant v/s M/s Asian Constructions, 1) Mr. Jammie Jose Maria Adolfo Dias, 2) Mr. Taber Ray DSilva (Partners) Damodar Chambers OF-02, 1st Floor, Opp. Blue Pearl Theatre, Margao Goa. Opposite Party Complainant present in person For the Opposite PartyShri A. Kantak, Advocate Dated:04-09-2009 ORDER
[Per Smt Sandra Vaz e Correia, Presiding Member]
1. The complainant is a British national; she is before us alleging deficiency in services rendered by the opposite parties in the construction of two flats in the building Dona Rosa at Varca Salcete Goa purchased by her son Ian and herself by an agreement dated 26-05-2006.
Case of the complainant.
2. Succinctly, it is the complainants case that she entered into an agreement for construction & sale dated 26-05-2006 with the opposite parties to purchase flats F-5(a) & F-5(b) in the building Dona Rosa at Varca Salcete Goa for consideration of Rs. 32,00,000/-. The complainant paid an amount of Rs.31,20,000/- including an amount of Rs.20,000/- in cash. The opposite party invited and permitted the complainant by email of 06-04-2006 to occupy the said flats combined to make one apartment. However, the opposite party did not convey the property nor furnish occupancy certificate, electricity meter and final possession letter. The construction activity in the vicinity of the complainants flat causes disturbances, filth and noise. The opposite party has not completed the landscaping, swimming pool and boundary wall around the building, internal roads and pathways as per the agreement. Although the complainant failed to complete and make habitable the apartment, the complainant was compelled to occupy the same as it was her only residence in Goa and had to bear a lot of inconvenience etc as listed in the two catalogue of errors submitted to the opposite party. The complainant addressed four letters/legal notices to the opposite party, but they did not elicit any response.
3. The complainant sought direction to the opposite party to complete relevant deed of sale, occupancy certificate, install electricity meter, water connection, garbage and car parking facilities and to rectify the faults, re-repairs to water outlets and flooring levels in balconies, repair the second bathroom & sink piping and living room floor tiling and for compensation for monetary loss from loss of earnings.
Case of the opposite parties.
4. Per contra, the opposite parties contested the complaint and entered their written version. Preliminary objection on jurisdiction of this Commission was raised as the complainant was already in possession of the flat consequently the jurisdiction of this Commission was ousted. The complainant owed the opposite party amounts payable under the agreement and hence was not entitled to the reliefs. The agreement had been terminated by the opposite party vide notice dated 24-05-2007; consequently the complainant was no longer a consumer. On merits, execution of the agreement is not disputed. However, it is submitted that the agreement was terminated vide notice dated 24-05-2007. Receipt of Rs. 20000/- in cash was denied. When the agreement was dated 26-05-2006, possession could possibly not be offered on 26-04-2006. Execution of sale deed would arise only after the complainant paid all amounts payable under the agreement. The complainant was not entitled to be in possession of the apartment until the same was given by the opposite party. Electricity connection and occupancy certificate of the panchayat had been obtained for the apartment, however the complainant was not entitled to the above since she was due and payable to the opposite party certain amounts payable under the agreement. Under the agreement, possession was to be delivered within seven months with grace period of four months; in view of the agreement signed on 26-05-2006, the maximum time limit for delivery of possession was therefore till 26-04-2007. The complaint was filed on 28-03-2007 much prior to the time limit.
5. The agreement provided that possession of the flats were to be delivered after the premises were ready provided all amounts were due and payable were paid to the opposite party. As regards incomplete or defective works, since the time for delivery of possession was 26-04-2007, it was open to the complainant to point out any aspects that were not complete or to show that the apartment was not habitable. It was denied that the two lists of catalogue of errors were handed over to the opposite party. Even otherwise, the catalogue of errors was dated 02-12-2006 much prior to the promised date of possession. Although receipt of the letters/notices was admitted, it was submitted that the complainant had no rights to make demands without complying with the terms of the agreement. The opposite party had not delivered possession and consequently the complainant was not entitled to be in occupation of the flats. The legal notice also implied lack of application of mind by the advocate, as such there was no need of replying to the communications addressed by the complainant. The complainant had filed a false and bogus case and it deserved to be dismissed.
6. Parties filed their affidavits in evidence alongwith documents and reiterated their case set out in the pleadings. The complainant was extensively cross-examined by the opposite party. At the final hearing, we heard the complainant present in person and Ld Adv Shri Ajit Kantak for the opposite party for some time. Parties also filed written submissions.
Issues.
7. We have perused the pleadings of the parties and the evidence on record and gave due consideration to the submissions advanced by the parties. In view of the rival contentions, the following points crystallize for our consideration for determination of this dispute, namely,
1. Whether the complaint abates upon termination of the agreement by the opposite party by notice dated 04-05-2007?
2. Whether the opposite party took forcible possession of the apartment on 30-09-2006 as alleged by the opposite party?
3. Whether the complainant is entitled to a direction to the opposite party to execute sale deed with respect to her apartment as well as furnishing of the occupancy certificate?
4. Whether the complainant proves defective and incomplete work by the opposite party in her apartment and in the building complex?
5. Whether the opposite party proves that the complainant is liable to pay them Rs. 108,442/- towards extra work and Rs. 70227/- towards taxes and utility bills?
Point no. 1
8. The opposite party terminated the agreement between the parties vide letter dated 04-05-2007 on the ground that the complainant had defaulted in payment of an amount of Rs. 74000/-; it transpires that the cheque issued by the complainant was dishonored on account of stop payment instructions. The opposite party submits that the once the agreement has been terminated there is no case for continuing the present complaint. There is no merit in this submission. The complaint was filed on 29-03-2007 and notice was received by the opposite party on 13-04-2007. The agreement was purportedly terminated on 04-05-2007.
Such termination, to our mind, was arbitrary and illegal moreso as it was done during the pendency of these proceedings of which the opposite party had full knowledge of. The purported termination was done ostensibly to restrict the scope of the complainants case, which is unacceptable. In any case, termination of an agreement where the purchaser had paid more than 90% of the consideration amount and was in possession of the apartment cannot be sustained. Moreover, the Honble High Court gave its ruling on the point when the opposite party took the matter before it by way of a writ petition. The relevant portion of the judgment of Honble High Court in W.P. no. 647 of 2008 paragraph 3 reads:
3. The learned Counsel for the petitioner/opposite party, states before me that the Consumer Forum cannot grant a relief in favour of the complainant at all in view of the fact that the agreement has come to an end. He submits that the agreement has been terminated since the complainant had not paid the consideration which she was required to pay under the agreement.
He submits that since the agreement has been terminated, the complainant is no more the consumer within the meaning of the Act. The submission has to be rejected to be stated. The reason is that the consumer has necessarily come before the Court to enforce the agreement. Enforcement of the agreement in any case, could be said to be enforcing the right under the agreement. Such a person is a consumer. The statement, therefore, has no force We find the point in the negative.
Point no. 2.
9. There is a controversy regarding the complainant coming into possession of the suit apartment. The issue requires resolution as the opposite party contends that the complaint was filed before the agreed date for delivery of possession and hence was premature. It is the complainants case that she was delivered possession of the apartment by the opposite party on 30-09-2006. No doubt the agreement stipulates that the premises shall be delivered on or before expiry of seven months with further four month grace period, the communications between the parties speak otherwise. In the email of 26-04-2006 at page C/34, the opposite party assures the complainant that possession of the flat would be delivered in September. The opposite partys email of 22-09-2006 informs the complainant inter-alia that the flat is almost ready just one coat of paint remaining. This position is vindicated by the schedule of payments at clause 3 of the agreement wherein except for Rs.6000/- to be paid against possession, the remainder of the amount of Rs. 32,00,000/- was to be paid by 26-09-2006. Another important aspect is that although the complainant took possession of the flat on 30-09-2006 forcibly as alleged - there was no reaction at all from the opposite party. If at all the opposite party was aggrieved, they could and would have taken legal action to evict the complainant which they, understandably, did not do. They do nothing for almost seven months, and then in their letter dated 21-04-2007 sent in the backdrop of the complainants communications regarding deficiency in their services and initiation of these proceedings, they rather sheepishly speak of the complainant taking forceful entering the premises which constitutes criminal trespass. To our minds, an afterthought. No doubt clause 8 of the agreement lays down the procedure to deliver possession, but opposite parties, by their implied acquiescence, waived the stipulation. In these circumstances, we did not find anything irregular or unlawful in the complainant coming into possession of the apartment. Hence, we find the point in the negative.
Point no. 3.
10. The complainants grievance is that the opposite party failed to convey the apartment in her favour. The contract between the parties provides that the opposite parties shall convey the apartment in favour of the purchasers/complainant upon payment of all amounts and as per the draft prepared by the formers advocate. The agreement also provides that the conveyance shall be subject to approval to be obtained by the purchaser/complainant under FEMA 2000. There is a controversy regarding alleged payment of Rs. 20000/- in cash by the complainant on 22-03-2006. However, the complainant was unable to produce any receipt for the said payment; neither did the agreement executed after that date speaks of the said payment. The balance amount outstanding payable by the complainant is Rs. 1,00,000/-; it would be fair and reasonable to direct the complainant to pay the said amount to the opposite party alongwith simple interest @ 10% p.a. from 01-10-2006 till full payment.
11. In these facts and circumstances, the complainant is entitled for a direction to the opposite parties to convey the said flats F-5(a) & F-5(b) in the project Dona Rosa in favour of the complainant and her son Mr Iain A Packman upon payment of the balance consideration aforesaid in full and the complainant obtaining all clearances under FEMA 2000, within thirty days. The opposite parties shall also furnish copy of the occupancy certificate of the flats to the complainant within thirty days.
Point no. 4
12. The complainant has prayed for a direction to the opposite party to rectify the faults to water outlets and flooring levels in the balconies, second bathroom and sink piping and living room floor tiling. However, except for bald statements made in her pleadings, the complainant did not lead any evidence or examine any expert or technical person to establish the existence of the defects. Nor did she seek this Commissions assistance as in appointment of commissioner etc. The complainant also alleged nuisance caused by on-going construction activity in the project, etc; but there is no independent corroboration of this fact. Nonetheless, in all fairness, the opposite parties delivered possession of the apartment well before the agreed date; in such peculiar circumstances, the opposite party would have to be given some latitude to complete the construction work of the project. We find the point in negative.
Point no. 5
13. The opposite parties have claimed that the complainant is liable to pay them an amount of Rs. Rs. 108,442/- towards extra work and Rs. 70,227/- towards taxes and utility bills. They have produced a statement along with their written statement. The claim against extra work surfaced for the first time in the opposite partys reply to the complainants legal notice. The opposite parties have not furnished any details such as measurements etc of the extra work done. There is neither any written request from the complainant for such extra work nor any confirmation of any oral instructions by the opposite parties; in fact she denied that she asked for the extra work at any time and presumed that they were part of the agreed specifications. The opposite parties never raised any invoice for the extra work done. We did not find any substance in the opposite partys claim.
14. Turning to the claim of Rs. 70,227/- towards payment of infrastructure tax, electricity bills and water bills, the agreement stipulates that the purchaser/complainant shall be liable to pay all taxes and utility charges. Insofar as the infrastructure tax is concerned, it is a tax levied by the State Government; the complainant would be liable to pay the said amount.
15. Insofar as the electricity bills are concerned, the opposite party claims that they pertain to the period that the complainant was in possession of the flats. The opposite party has produced copies of the relevant bills of what appears to be a temporary connection provided to the building. However, the opposite party has been unable to show how much of electricity consumed is to be fairly apportioned to the complainant. The claim for Rs. 54,350/- for a six-month period @ Rs. 9058/- per month is rather exaggerated. On the other hand, the complainant has produced permanent electricity connection bills alongwith her written arguments which show that the complainant was billed only Rs. 2352/- for the period of ten months from 14 June 2007 to 08 April 2008, an average monthly bill of Rs. 235/-. The opposite partys claim of Rs. 54,350/- is disallowed.
16. Likewise, the claim for Rs. 11,851/- towards water consumption charges for the six-month period is highly exaggerated and not supported by any documentary evidence. The claim is disallowed.
17. Nevertheless, the opposite party shall be at liberty to agitate the issue of extra works and utility bills before any other the competent forum, if so advised.
18. In view of the forgoing, the following order: -
a. The complaint is partly allowed. b. The opposite parties are directed to convey the said flats F-5(a) & F-5(b) in the
project Dona Rosa in favour of the complainant and her son Mr Iain A Packman upon payment of the balance consideration of Rs. 1,00,000/- alongwith simple interest @ 10% p.a. from 01-10-2006 till full payment and the complainant obtaining clearance under FEMA 2000, within thirty days.
c. The opposite parties are directed to furnish copy of the occupancy certificate of the said flats to the complainant within thirty days.
d. The complainant is directed to pay the opposite parties the amount of infrastructure tax of Rs. 4026/- within thirty days, failing which it shall be paid alongwith interest @ 10% p.a. thereafter.
e. The opposite parties are directed to pay the complainant an amount of Rs. 1500/- as costs of this litigation.
Order accordingly.
Pronounced.
[Sandra Vaz e Correia] Member [Caroline Collasso] Member