State Consumer Disputes Redressal Commission
Santana Francisco Floriano Noronha vs Nester Thomas Sequeira on 8 May, 2015
1
BEFORE THE GOA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION,
PANAJI - GOA
C.C. No. 02/2014
1. Mr. Santana Francisco Floriano Noronha,
2. Mrs. Delia Maria da Immaculada Conceicao Machado e Noronha
R/o. Flat No. FF-3, First Floor,
Libra Harmony,
Mapusa, Bardez, Goa ... Complainants
v/s
Mr. Nester Thomas Sequeira,
Sole Proprietor, of 'M/s. Libra Enterprises",
with his office at Relino Apartments,
Naika Vaddo, Calangute, Bardez, Goa. ... Opposite Party
Complainants are represented by Adv. Shri. N.G. Kamat.
OP is represented by Adv. Shri. B.D. Nazareth.
Coram: Shri. Justice N.A. Britto, President
Smt. Vidhya R. Gurav, Member
Dated: 08/05/2015
ORDER
[Per Justice Shri. N. A. Britto, President] This order shall dispose off the consumer complaint filed by the complainants against the OP on 14/1/14.
2. The undisputed facts, bereft of the complainants' platitudes, are as follows:
3. The complainants, husband and wife, were the residents of Muscat, Oman.
24. The OP is a builder doing his business in the name of M/s. Libra Enterprises. The OP had obtained permission from the Municipality dated 12/2/09 to put up a building to be known as Libra Harmony at Mapusa, in a small plot of land admeasuring 928 sq.mtrs. of Chalta No. 5 of P.T. sheet No. 42 of Mapusa. The said building was a small project consisting of 11 flats out of which three flats were meant for the owners of the said plot, while 8 flats were to be sold by the OP. The average set back of the said building was approximately 4.20 to 4.40 mtrs.
5. The OP put a photograph of the said proposed building on his website (copy at page 18). The complainants came across the said website and then approached the OP and entered into an agreement with the OP dated 28/3/2009, styled as an agreement for sale, and agreed to purchase from the OP, a flat admeasuring 94.5 sq.mtrs., identified as flat No. FF-3 on the 1st floor of the said building for a sum of Rs. 16,49,970/-. The possession of the said flat was to be delivered to the complainants within a period of 24 months from the date of the said agreement. The flat was to be completed as per specifications given in Annexure-II of the said agreement and the payments were to be made as per Annexure - III to the said agreement.
6. The OP obtained the occupancy certificate for the said building (copy at page 170) from Mapusa Municipal Council on or about 19/2/13 and handed over the possession of the said flat to the complainants under possession certificate/flat acceptance letter dated 26/3/13 duly signed by both the complainants as well as the OP (copy at page 168). In the said flat acceptance letter the complainants declared that after inspecting the said flat they had taken peaceful vacant possession of the same and that they did not 3 have any claim of any nature as against M/s. Libra Enterprises, with respect to the above flat.
7. Thereafter, the complainants approached the OP for execution of sale deed and the sale deed was executed on 13/8/13 (copy at page 39). One of the recitals of the said sale deed reads as follows:
"And whereas the purchasers after inspecting the said flat and being satisfied with the construction of the said flat, have requested the owners/sellers and the confirming party to convey the said flat together with the proportionate share in land corresponding the built up area of the said flat in favour of the purchasers in discharge of an obligation arising out of the said agreement dated 28/3/09."
8. By virtue of the said sale deed the title to the said flat was conveyed to the complainants alongwith the proportionate share in land corresponding to the built up area of the said flat.
9. The complainants and the OP executed another agreement on 21/10/13, styled as an agreement for grant of easementary rights (copy at page 63). By virtue of this agreement the owners of the property through the OP granted to the complainants an easementary right for a sum of Rs. 40,000/- to an open space which was covered and which had an area of 8.6 sq.mtrs. It was stipulated by both the parties, in the said agreement, that the complainants would not be entitled to carry out any construction of a permanent nature in the said granted area and in any event of any such activity being undertaken the complainants would be exclusively responsible and liable for the same.
10. Thereafter, the complainants got the flat and surroundings inspected by Arch. Shri. S.S. Bhobe who submitted his report dated 31/12/13. The complainants then issued a legal notice to the OP 4 dated 6/1/14, and, as already stated filed the complaint on 14/1/14 for various reliefs, including a direction to the OP to complete the works as enlisted by Arch. Shri. S.S. Bhobe in his report dated 31/12/13 and for a total compensation of Rs. 21,94,281/-, in terms of prayers (e), (f), (g), (h), (i) & (f) (should have been (j)) of the complaint.
11. During the trial of the complaint, the complainants filed the affidavits of the complainant Delia, Arch. Shri. S.S. Bhobe and Carole Dixon. Mrs. Carole Dixon is the complainant in CC No. 20/13 whose complaint was disposed off by order dated 18/12/14.
12. The OP filed his own affidavit and those of the engineer of the project Shri. Oswald F. D'Mello and the contractor Shri. V.K. Nadkarni. Shri. Nadkarni in his affidavit has stated that the consulting engineer Shri. D'Mello inspected the work of construction executed by them at every stage of construction and only after satisfaction of the engineer that they were authorized to proceed with the execution of the next stage of construction. He has also stated that the building has been carried out in strict adherence with the approved plan and the construction licence. He has further stated that besides the provision for four covered parking of vehicles, there is sufficient space around the building for parking of vehicles as the setback line is on an average 4.5 meters. He has also stated that the chambers have been erected at ground level and there is absolutely no obstruction for the movement or parking of any vehicles. Engineer Shri. D'Mello in his affidavit has stated that after confirming that the construction was complete in all respects in terms of the approved plan, and the construction lincence, he issued a completion certificate dated 10/4/12 (copy at page 172) and confirmed that the building was fit for occupation, pursuant to 5 which the Mapusa Municipal Council, after thorough inspection and confirmation of the facts stated in his completion certificate, issued the occupancy certificate dated 19/2/13.
13. The complainant Smt. Delia filed additional affidavit in evidence dated 19/6/14 (copy at page 233 onwards) with seven photographs. The OP did not lag behind and filed his own affidavit in reply dated 23/6/14 (copy at page 240) with three photographs by way of reply to the photographs produced by the complainants.
14. The complainants' application dated 2/4/14 for the cross examination of the OP and his witnesses, was opposed by the OP by reply dated 7/4/14 and was dismissed by this Commission by order dated 22/4/14 for reasons recorded therein.
15. The complainants again filed a memorandum dated 12/8/14 (copy at page 266) with more photographs of incomplete works or of works which were not completed. The same was replied to by the OP by reply dated 9/9/14 (copy at page 275). The complainants again produced more photographs of incomplete or unfinished works vide application dated 9/10/14 (copy at page 279 onwards) and the OP replied the same by reply dated 9/10/14 (copy at page 285 onwards) with more photographs and stating that the photographs produced on record by the complainants were in respect of the position that existed prior to the release of permanent electricity connection and of the situation that existed at the time when the work was being executed. The said photographs produced by the OP are at pages 289 onwards and these are the last photographs produced by the OP after the works were completed by him.
16. At this stage it may be observed that during the trial of the complaint lot of works were completed by the OP like putting of the 6 pavers, providing a transformer and a permanent electricity connection to the complainants, etc.
17. The complainants have filed additional affidavit-in-evidence on 7/11/14 raising the problem of dampness (copy at page 304) and the same was replied to by the OP by affidavit in reply dated 13/11/14 (copy at page 307). While the oral arguments were in progress, a suggestion was made to the Lr. advocates of the parties whether appointment of a Commissioner would be agreeable to them, a Commissioner who would point out the defects, if any, and get them rectified under his supervision. This was on 12/11/14. Both the parties readily agreed, and, on 16/12/14 the complainants suggested the name of Executive Engineer (buildings) PWD, Mapusa to be appointed as a Commissioner for the said purpose. Earlier, both the parties had agreed to appoint Eng. Shri. Paresh Gaitonde, who later showed his disinclination to act as a Commissioner. Since Eng. Shri.Paresh Gaitonde was unwilling. Asst. Engineer of the Buildings Division of PWD at Mapusa was appointed as a Commissioner to inspect the flat of the complainants and point out the defects and deficiencies, if any, and if pointed out, get them rectified by the OP under his supervision. The fees of the Commissioner were ordered to be paid by the OP and the costs of rectification/repairs were also to be carried out by the OPs. The Commissioner was to submit his report within three weeks and the defects and deficiencies, if any, were to be rectified by the OP at his own cost within 3 months of the submission of his report. This was recorded on order sheet dated 16/12/14.
18. Later, Asst. Eng. Shri. M.K. Talkar from works Division V, PWD carried out the inspection of the complainants flat on 8/1/15 in the presence of the complainant and the OP. Their respective 7 advocates who were duly informed by him chose to remain absent. The complainants showed to him three defects. The third defect, as pointed by him, has been rectified by the OP, as can be seen from the photograph produced at page 327. The first defect pointed out by the complainant to the Commissioner was of dampness mark at the lower end of the wall of the flat in the living room. Certain observations have been made by the said Commissioner Asst. Eng. Shri. M.K. Talkar in that regard and he has opined that when the concealed flush of the said w.c. is used water leaks from the joint of w.c. at the wall which could directly be attributed to the dampness. The second defect pointed out by the complainants to him was of the wall tiles in the common bath room. He has opined that there is no defect or deficiency in the workmanship and there is no merit in the grievance of the complainant as regards the fixing of the said wall tiles.
19. The complainants then filed their objections to the report of the Commissioner dated 20/01/15 (copy at page 329) and also filed an application dated 5/3/15 for a local inspection. We had shown our inclination to the complainants that we would not carry out any local inspection since a competent engineer was appointed to look into the defects/deficiencies to be pointed out by the complainants and that we would be hearing the final arguments. The application dated 5/3/15 for local inspection filed by the complainants therefore would stand rejected for reasons earlier conveyed to both the parties.
20. The above is the history of these proceedings.
21. We have heard Shri. N.G. Kamat, the lr. advocate of the complainants and Shri. B.D. Nazareth, the lr. advocate of the OP, who has placed reliance on an order of this Commission dated 8 01/11/12 in FA No. 40/10 filed by Shri. Kiran A. Dabholkar as well as the order dated 18/12/14 in C.C. No. 20/13 filed by the said Mrs. Carole Dixon.
22. During the course of oral submissions, Shri. N.G. Kamat has submitted that the complainants would not press for the relief sought by the complainants in terms of prayer (b) of the complaint.
23. At one stage of oral submissions, the OP had shown his willingness to refund to the complainants the sum of Rs. 40,000/- paid for by the complainants under the agreement dated 21/10/13 stating that the OP was unable to obtain the approval of the Town and Country Planning Department or the Municipality to regularize the said area of 8.6 mtrs. The OP had submitted that on return of Rs. 40,000/- the said covered space would be free to be used by the other occupants of the building. It appears that the said built up area of 8.60 sq.mtrs. has now been converted by the complainants into a "pucca" garage by putting a shutter, etc. Although the complainants had the support of the said Mrs. Carole Dixon at the time of filing their respective complaints, it appears now that the said Mrs. Carole Dixon has fallen out from complainant Delia. This can be seen from para 13 of order dated 18/12/14 in the complaint filed by the said Mrs. Carole Dixon. The said Mrs. Carole Dixon filed her additional affidavit on 3/11/14 to bring on record that the said Mrs. Delia Noronha had started unauthorized construction activity by putting up a shutter and padlock in the open space in the compound which was transferred to her by the OP and that there was an altercation between the complainant (Mrs. Carole Dixon) and Mrs. Delia and that the said Mrs. Delia had come to attack the complainant Carole and her husband with a hockey stick. Photographs were also produced to support the said statement. The 9 complainant Carole Dixon was given liberty to take appropriate action against the complainant Delia before appropriate Forum. It is therefore clear now as to why the complainants are not pressing for the relief in terms of prayer (b) of the complaint.
24. The OP produced the flat acceptance letter dated 26/3/13 duly signed by both the complainants as well as the OP, alongwith his written version wherein the complainants had solemnly declared that after inspecting the flat they had taken peaceful possession of the same and that they did not have any claim against the OP in respect of the said flat. The OP in his affidavit-in-evidence stated that the complainants suppressed the fact that the complainants took physical possession of the apartment after being fully satisfied that the same was constructed in terms of the specifications contained in the agreement and that after inspecting the suit flat and after being satisfied of the construction of the flat, themselves requested him, who was also representing the owners, to convey the said flat together with proportionate share in land corresponding to the built up area of the said flat in their favour, and, he complied with the request of the complainants and proceeded to execute the said sale deed. He has further stated that the website contained only one photograph and the project has been executed exactly as shown in the photograph. He denied that the complainants were given a brochure and there was no brochure made of the proposed project.
25. We asked Shri. Kamat, the lr. advocate of the complainants, as to why the complainants had not produced the said flat acceptance letter dated 26/3/13 or what was the complainants explanation to the same, in the affidavit-in-evidence filed by complainant Delia. Shri. Kamat has submitted that the complainants were not given a copy of the said letter, and, if that be so, the least which was 10 expected of the complainant Delia was to say so in the affidavit filed by her in the support of the complaint. In our view, the complainants have indulged in "suppressio veri, suggestio falsi,"by not producing the said letter, a vital document. In our order dated 01/11/12 in FA No. 40/10 filed by Kiran A. Dhabolkar we had observed as follows:
"9. Consumer jurisdiction under C.P. Act, 1986 is a summary jurisdiction. In all summary jurisdictions including applications for temporary injunction, before Civil Courts, writ jurisdiction, etc. suppression of material facts is fatal to the party approaching the Court. That itself is sufficient to show the door to the party approaching the Court, without going to the merits of his case.
9.1. The National Commission in Atlanta Arcade Premises Co.op. Society Ltd., 2012 (1) CCC 138 has observed that no leniency should be shown to such type of litigants who in order to cover up their own fault and negligence, go on filing meritless petitions in different foras. Time and again courts have held that if any litigant approaches the Court of equity with unclean hands, suppress the material facts, make false averments in the petition and tries to mislead and hoodwink the judicial Forums, then his petition should be thrown away at the threshold.
9.2. In Tarachand Kosle v/s National Aviation (2012(2)CPR 104) the Chhattisgarh State Commission has held that "principles of natural justice demand that everyone should come before District Forum with clean hands stating bonafidely, every fact without any concealment. If any concealment of material fact is found on the part of any party, then such party cannot be granted any discretionary relief under the provisions of C. P. Act, 1986".11
26. Why did the complainants indulge in suppressing the said flat acceptance letter? The complainants have produced the agreement for sale, the sale deed and the agreement for grant of easementary rights but not the said acceptance letter. If complainants had copies of these three documents why not the said letter? If complainant Mrs. Carole Dixon was given the copy of the same and she produced it at page 112 in CC No. 20/13, we find difficult to believe that the complainants in this case were not given a copy of the same. In our order dated 18/12/14 in CC No. 20/13 in relation to the said flat acceptance letter, we have observed as follows:
"There is no whisper in the complaint or for that matter in the affidavit-in-evidence given by the complainants as to the circumstances in which the complainant gave the said letter of acceptance of the flat clearly and unequivocally stating that she did not have any claim of any nature against the OP with respect to the said flat. The complainant is certainly bound by the said assurance or undertaking given by her, and, in law the complainant cannot wriggle out from the said assurance. She is bound by the said undertaking. It is well settled now, that the Indian Contract Act applies to all (see Marine Container Services, AIR 1999 SC 80) and the terms of an agreement are generally binding on the parties (see Bharat Knitting Company, AIR 1996 SC 2508). In view of the said assurance or undertaking in the acceptance letter dated 20/2/13 the complainant is not entitled to any of the amounts prayed for by her vide prayer (a) to (c) of the complaint."
27. We would adopt the same line of reasoning. The fact that the complainants suppressed the said letter of acceptance dated 23/3/13 is reason good enough to dismiss her complaint. Alternatively, in the light of the said letter the complainant would not be entitled to any of the reliefs claimed in terms of prayers (e), (f), (g) (h) (i) and (f) 12 (sic (j)) of the complaint. The complainants have also not placed any material to support the expenditure claimed by her by way of some of the said prayers. For all these reasons the complaint will be required to be dismissed in terms of prayers (e), (f), (g) (h) and (f) of the complaint. Prayer (c) has become infructous as the complainants have been given a permanent electricity connection after the transformer was installed, in the course of the trial of this complaint. Prayer(d) was answered by us in our order dated 18/12/14 observing:
"37. In terms of the agreement, the OP was required to either execute a sale deed in favour of the complainant or to the Management of a Cooperative Society. The OP has stated that sale deeds of six flats out of 8, have been executed and he had requested the purchasers to from an association but there appears to be no understanding between the flat owners to form the same. The OP says he is ready and willing to get the association registered. We see the said Delia, in one of the photos, with a hockey stick in her hand. What made her to show the hockey stick, we do not know. We need only observe that it is in the interests of the purchasers to form an association for the purpose of maintenance of the flats".
28. As regards prayer (i) the complainants have prayed for refund of Rs. 14,281/- paid by the complainants to the electricity department. Shri. Kamat, the lr. advocate of the complainants points out to the bill dated 26/3/13 issued to the complainants by the OP by which the complainants paid Rs. 10,000/- towards electricity deposit. Lr. Adv. Shri. Kamat concedes that the complainants paid Rs. 14,281/- to get a temporary electricity connection but submits that the meter through which the permanent connection has now been given to the complainants, was installed by the electricity 13 department at that time. Lr. advocate submits that in case he approaches the electricity department for refund of Rs. 14,281/-, the department would tell the complainants to return the meter.
29. We are not impressed with the said submission of the Lr. Adv. Shri. N.G. Kamat. A similar prayer was made by complainant Carole Dixon in C.C. No. 20/13 and it was answered by the following observations:
"Initially, it appears that the complainant and two other purchasers came to occupy the three flats and they were drawing electricity from a three phase connection through a common electricity meter which was in the name of the owner of the property. Even as late as 25/10/14 only four flats were being occupied. One does not know whether the complainant paid any amount towards the consumption of electricity from the time the complainant obtained possession of the suit flat. The problem between the complainant and the OP on this score appear to have started after the OP, by letter dated 11/10/13 demanded from the complainant Rs. 31,545/- to set up a separate transformer costing Rs. 3,47,000/- as per the demand of the Electricity Department, that multi dwelling residential buildings should have their own transformers, and, also after letter dated 30/11/13 (copy at page 229) the OP demanded from the complainant a sum of Rs. 57,922/- for the period from March, 1913 to October, 1913 towards electricity charges. Earlier, the OP had written a common letter dated 25/11/13 to all the apartment owners of 'Libra Harmony' informing them that the current connection was on temporary meter and the rates for the same were higher than normal and that the outstanding electricity bill was Rs. 40,926/- which was required to be cleared. Subsequently, during the pendency of these proceedings the complainant has been provided a permanent electricity connection, after a new transformer was commissioned, 14 after it was approved by Department of the Electricity on or about 30/7/14. The OP was certainly liable to provide a permanent electricity connection to the complainant, and, in case the Department had insisted for additional transformer the OP was bound to bear the additional expenditure for the same. One fails to understand as to why the Complainant chose to go for a separate e/meter w.e.f. 16/12/13 instead of paying Rs. 57,922/- as demanded by the OP by letter dated 30/11/13. Was it to avoid the payment? It is also not the case of the Complainant that she paid any electricity charges from February to October '13, and if so, how much. The OP says that he paid for Complainant's consumption of electricity upto 15/12/13. We accept his version. In case the complainant has made any payment to the Department of Electricity to obtain a separate connection in her name from 16/12/13, she is entitled to seek the refund of the deposit, if any, made by her to the Department of Electricity. The complainant would not be entitled to Rs. 16,000/- or any part thereof as claimed by the complainant in terms of prayer
(l) of the complaint, more so when the Complainant has now been provided with permanent electricity connection."
30. The facts of this case are not different from the facts of the case of Mrs. Carole Dixon as far as obtaining temporary electricity connection and in this case the complainant paid an amount of Rs. 14,281/-. Both were sailing in the same boat, at that time. It is not the case of the complainants that they have made any attempt to the department of electricity to obtain the refund of the said sum of Rs. 14,281/- or any part thereof and the electricity department has declined to order a refund. The complainants deposit of Rs. 10,000/- has been utilized by the OP and the OP has provided to the complainants a permanent electricity connection, and, therefore, in our view the complainants are not entitled to have the refund of Rs.
1510,000/- from the OP. They should obtain the refund of Rs. 14,281/- from the electricity department in case they are entitled to the same or any part thereof. It is they who had paid the said amount of Rs. 14,281/- to obtain a temporary electricity connection and presumably to avoid their contribution towards the outstanding electricity bill of Rs. 40,926/- as demanded by the OP by common letter dated 25/11/13. In our view, the Complainants would not be entitled to any relief in terms of prayer (i) of the complaint.
31. Regarding prayer (a) we have to go now by the report of the Commissioner dated 20/1/15. The complainants were free to point out to the said Commissioner whatever defects or deficiencies they wanted to but chose only to point out three which have been dealt by the Commissioner in his said report dated 20/1/15.
32. Shri. Kamat, the lr. advocate would submit as regards the first defect pointed out by the complainants and noted by the Commissioner that there should have been perennial dampness and that there could not have been a dry patch. Lr. advocate submits that many defects were pointed out to the said Commissioner but he chose not to take note of the same. Lr. advocate submits that further directions need to be given to the said Commissioner or this Commission should go by the report of the Arch. Shri. S.S. Bhobe.
33. On the other hand, Shri. Nazareth points out that objections to the report of the Commissioner, have not even been signed by any of the complainants but by the adv. who was not present at the time of the said inspection. Lr. Adv. Shri. Nazareth submits that no affidavit has been filed by any of the complainants to dispute the said Commissioner's report dated 20/1/15. Lr. advocate points out to para 34(c) of the complaint to say that 2 wcs were provided by the complainants and fitted by the OP. Lr. advocate submits that the 16 dampness mark is a sign that the wc was used in the past, and, if at all there is no dampness at present, it is because the said wc, because of leakage, is not being used by the complainants. We are inclined to accept the said submission of Shri. Nazareth. The Commissioner has reported, on observation, that when the concealed flush of the said wc is used, water leaks from joint of the wc at the wall which could directly be attributed to the dampness. He has also opined that at the request of the complainants, the OP, on several occasions tried to rectify the said leakage and according to him there is no defect in the workmanship and it is possible that the leakage is the result of defective wc or the water seals used which are not suitable for the said wc. We would prefer to go by the opinion given by the Commissioner appointed by this State Commission. As pointed out by the said Commissioner Shri. Talkar the complainants are free to take up the matter with the Company who supplied the said wc or in the alternative change the wc. The OP cannot be blamed for bad workmanship in fitting the said wc. As already stated, the complainants had an option to bring to the notice of the Commissioner the defects or deficiencies in the construction but they chose to point out only three and the third has been rectified by the OP. We therefore need not go back to the report of Shri. Bhobe as the complainants had ample opportunity to point the defects and deficiencies and get them rectified at the cost of the OP as directed by this State Commission, by order dated 16/12/14.
34. Left with no cards to play, Shri. Kamat, the lr adv. points out to the compound wall from photographs at page 282 and submits that the said wall is likely to give way very soon. He also points out to the pipes fitted across the said wall submitting that the said pipes should have been placed underground. He also points out to the 17 photographs at page 237 and submits that instead of a wall of a masonary stones, a wall with fence has been provided by the OP.
35. Lr. Adv. Shri. Nazareth explains that the said wall shown on photographs at page 282 is a wall which does not belong to the owners of the property and that the owners and builder i.e. OP had submitted plans to build only 2 sides of the wall which they had accordingly done. He submits that the big pipe has been fitted across the wall to pump water in case of emergency and there is no rule which requires that every pipe should be placed underground. Lr. advocate submits that the wall with fence is equally strong and there is no hard and fast rule that it had to be of laterite stones only.
36. We have perused the plan on record by which the OP had taken permission to build only 2 sides of the wall. Complainants must have certainly inspected the said plans and therefore cannot be heard complaining that the wall which does not belong to the owners or the OP should be rebuilt by them. There is no rule which says that a pipe cannot be placed against the wall and should always be placed underground. The compound wall which is built with base of laterite stone and fence type railing on the top equally serves the purpose of having a wall. The complainants were free to point out all this to Commissioner but they chose not to do the same and presumably because the complainants attach no importance to these aspects.
37. In the light of the above discussion, we find there is no merit in this complaint and accordingly the same is hereby dismissed leaving the parties to bear their own costs.
[Smt. Vidhya R. Gurav] [Justice Shri. N. A. Britto]
Member President
sp/-
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