Date  : 22.03.2013

Per Mr.K.B.Gawali, Hon`ble Member.

1.       Present appeal is filed by original opponent No.1 to 3 who are builders doing business in the name of M/s Rohit Construction, against the judgment and order dated 30.11.2006 passed by District Forum Aurangabad in C.C.No.82/2006.  Respondent is the original complainant.

2.       The brief facts of the case are that respondent/org.complainant had purchased two flats bearing No.4 & 6 at Vinit Residency, Dashmesh Nagar, Aurangabad for total consideration of Rs.10,25,000/- from respondent No.1 which is partnership firm doing business of construction. That, at the time of booking of these flats the building was under construction. That, during the construction work of these flats complainant had suggested some changes and it was agreed between complainant and respondent to pay extra amount of Rs.3,24,932/- towards the extra work as suggested by the complainant. However the appellant recovered the excess amount of Rs.2,68,682/- from the complainant in addition to the  amount of Rs.3,24,932/- towards the extra work.  It was also contended by complainant that possession of these flats was obtained on 22.7.2003 under protest stating that there was problem of Jaisalmer tiles and skirting of the tiles was not clean. That, after taking possession of these flats certain other defects were noticed such as fungus was developed on the wall due to leakage of water, there was leakage in the outlet of wash basin fixed in the drawing hall, kota used in all the rooms except drawing hall was of different colours and it`s quality was also not good. There was also leakage in the pipe of kitchen waste water outlet.  That, the colour of the house was not proper, P.O.P. was damaged and kitchen trolly was not provided although cost of Rs.37,500/- was charged for the same. That, after having found all these defects complainant had requested to the appellant vide his letter dated 13.12.2003 to carry out repairs and remove the defects. However no cognizance was taken. Therefore he himself got those defects removed for which he had to spend Rs.47,725.60 ps. Complainant therefore filed complaint  before District Forum alleging deficiency on the part of appellant seeking direction to the appellant to pay him total amount of Rs.3,26,460/- which included excess amount of Rs.2,68,682/- as recovered by appellant, Rs.47,725/- as spent by the complainant on repairs and Rs.10,000/- as compensation  towards mental agony.

3.       Appellant appeared before the Forum and resisted the claim. It was contended that at the time of booking of flats by the complainant building was under construction.  Complainant had suggested so many changes in the specification of the flats. Extra work was agreed to be done at additional cost of Rs.3,76,000/-.  However during the work of construction of the extra item there was total expenditure of Rs.5,08,807/- on the extra item as suggested by the complainant. Therefore accordingly the said amount was recovered from him. It was therefore contended that no extra amount of Rs.2,68,682/- was recovered as alleged by the complainant. It was also contended that complainant had taken possession on 22.7.2003 after satisfying about the quality of work and there was no deficiency as alleged by the complainant.  It was further submitted that in the possession letter also complainant has mentioned only two problems i.e. about Jaisalmer tiles and about unclean skirting. Appellant submitted that both these problems were of very minor nature and there was no other deficiency spelt out by the complainant at the time of taking possession.  Hence complaint filed by complainant being false be dismissed.

4.       District Forum after going through papers and hearing parties has partly allowed the complaint  and directed appellant to pay Rs.13,176.70 ps. along with interest @ 9% p.a. from 1.1.2004 till the date of actual payment to the complainant.  It is observed by District Forum that complainant  had not pointed out other defects except the  problem with the Jaisalmer tiles and regarding skirting of the floor tiles at the time of taking possession. Hence complaint  was allowed only to the extent of Jaisalmer tiles and problem regarding skirting being minor which only involved labour charges for cleaning, the same was not considered. While granting compensation of Rs.13,176.70 the Forum has taken into consideration the actual cost as given in the item wise abstract sheet supplied by M/s Rohit Construction on record.

5.       Aggrieved by the said judgment and order present appeal is filed in this Commission.  Appeal was  finally heard on 17.1.2013.  Adv.Shri.Pradeep Adkine was present for appellant, none was present for respondent, although Adv.P.F.Patni had appeared earlier on previous date for respondent. We heard Adv.Shri. Adkine for the appellant at length and appeal was reserved for judgment.

6.       Learned advocate Shri.Pradeep Adkine for the appellant submitted that complaint  was time barred and same was pointed out before the District Forum.  He submitted that possession of flat was taken on 22.3.2003, however complaint was filed in the month of January 2006 i.e. beyond the period of limitation.  He further submitted that even letter by which respondent demanded refund of alleged excess amount is taken as cause of action, complaint  was not within the time period as laid down under Section 24A of Consumer Protection Act. He therefore contended that District Forum without discussion or giving verdict on the point of limitation has wrongly passed the impugned judgment and order. It was further contended that complainant had not specified the exact problem with the Jaisalmer tiles. However District Forum has wrongly allowed entire cost of this item by way of it`s impugned judgment and order. He therefore requested to set aside the said judgment by allowing this appeal.

7.       We have carefully considered the papers before us as well as argument as advanced by learned counsel Shri.Adkine for the appellant. There are two major grounds for this appeal. One is that the complaint was time barred.  District Forum did not consider the said objection and secondly although the problem relating to Jaisalmer tiles was not specified the entire cost of these items have been awarded by the District Forum.

8.       As regards the contention of appellant that complaint  was time barred.  It is observed that complainant had by it`s letter dated 13.12.2003 addressed to the appellant demanded refund amount of Rs.2,68,682/- and also requested to remove the deficiency in the construction work of both the flats.  That, after the complainant had sent this letter he had to wait at least for some period for the appellant to take action on his said application. Therefore the date of 13.12.2003 cannot be treated as cause of action.  We consider the minimum period of at least three months i.e. 90 days from the date of said letter dated 13.12.2003 for taking action by the appellant i.e. up to 12.3.2003 which can be treated as the date of cause of action. Hence the complaint  being filed on 27.2.2006 can not be said as time barred.

9.       Now as regards the compensation amount towards replacing of Jaisalmer tiles we find no error with the order of the District Forum. When there was problem with these tiles they were required to be removed and replaced with new tiles. Therefore actual cost of Rs.13,176.50 ps which was quoted by appellant for these items is allowed by District Forum. In view of the aforesaid facts and observations we are not inclined to interfere with the judgment and order passed by District Forum. There is no substance in the present appeal.  Hence we pass the following order.

                                                O   R    D    E    R

1.     Appeal is dismissed.

2.     No order as to cost.

3.     Copies of the judgment be issued to both the parties.

Pronounced on 22.02.2013