DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD
Dated this the 26th day of February, 2024
Present : Sri. Vinay Menon V., President
: Smt. Vidya A., Member
: Sri. Krishnankutty N.K., Member Date of Filing: 18/12/2019
CC/290/2019
Aswathy P.,
W/o.K.V.Sreedhar,
15/275, “Sree Sajan”,
Kakkayur, Palakkad -678 512 - Complainant
(By Adv. P.Sreeprakash)
Vs
- Lekha Manoharan,
W/o.Manoharan,
Mayookha, Karala Street,
Palakkad – 1
- M.Ismail Farooq,
S/o.Muhammed Haneefa,
Al-Ain, Masjid Lane,
Parakunnam, Palakkad – 1
- Riyas M.I.,
S/o. M.Ismail Farooq,
Al-Ain, Masjid Lane,
Parakunnam, Palakkad – 1. - Opposite parties
(By Adv. K.P.Nouphal)
O R D E R
By Vinay Menon V., President.
Preface
- This is one of the ten cases filed by residents of an apartment complex named Field View Enclave constructed in the land belonging to 1st OP by the OPs 2 & 3. The other cases are 221/19, 235, 257/19, 258/19, 271/19, 276/19, 19/2020, 79/2020 & 93/2022. Joint trial was permitted by this Commission by its Order dated 25/03/2021 in I.A. 110/2020 in C.C. 221/2019. But this Order was set aside on the ground that notice was not granted to the complainants in other cases by the Hon’ble SCDRC by its Order dated 01/11/2021 in R.P. 17/2021. Since no fresh application, after curing the defects, was filed, all the matters are considered separately.
Pleadings
- Complainant pleads that there was delay in effecting registration of the apartment in the name of her husband and hers after executing sale agreement, charged excess amount of Rs.1,50,000/- for providing car parking facility when the cost was already included in sale consideration, and that they failed to provide tress work, Malampuzha water facilities, quality putty and paint works, facilities for availing gas connection, waste and garbage disposal, road access to main road, functional security room and clean common areas even after retaining the corpus of maintenance fund. Apartment of the complainant suffers from leakage of the walls in the kitchen and bedroom and defective drainage in the bathroom. Filing is caused seeking redressal of the above grievance caused by OPs 1 to 3 who are partners of one Al-Ain Homes, a partnership firm engaged in construction of apartments.
- OP1 filed version contending that she is not at all in any way connected with the construction of the apartment complex. Her only connection with the building is that the construction was made upon the property belonging to her.
- OPs 2 & 3 filed a joint version. They stated that the 1st OP is not a necessary party and that she had no connection whatsoever with the construction of the apartments complex. They objected to the complaint pleadings stating that it was due to the failure on the part of the complainant to effect payment as per payment schedules that led to delay in construction and handing over. O.P.s had not undertaken to provide Malampuzha water facility. They had not received any money from the complainant on account of payment for car parking. The complainant had not paid for the car parking facility.
Issues
- The following issues were framed for consideration:
- Whether OP1 is a necessary party to the proceedings?
- Whether the OPs failed to provide the amenities offered by them as per the agreement?
- Whether the delay in the registration of the complainant’s flat is due to the failure on the part of complainant to pay the sale consideration as per agreement?
- Whether the sale consideration of the flat included the value of the parking area also as claimed by the complainant?
- Whether there is any deficiency in service/unfair trade practice on the part of the opposite parties?
6. Whether the complainant is entitled to any of the reliefs sought for?
7. Any other reliefs?
Evidence
6. (i) Evidence of complainant comprised of proof affidavit and Exhibits A1 to A6.
(ii) O.P.s filed proof affidavit and OPs 2 & 3 marked Ext. B1.
(iii) Commission report filed by the Expert Commissioner who assisted the Advocate
Commissioner was marked as Ext.C1. OPs filed objection to the Commission Report.
(iv) Copy of certified copy of the building plan called forth from the LSG Authorities was marked as Ext.X1. Original is produced in C.C. 221/2019
Discussion
Issue No.1
7. Complainant’s case is that the OPs are the partners of one Al-Ain Homes, a partnership firm. It is in the alleged capacity of a partner that OP1 is impleaded in the complaint. OPs have denied the allegation that the 1st OP is one of the partners. It was based on this denial that this issue was framed. The complainant had not taken any steps to prove the role in 1st O.P. in the firm by calling production of partnership deed of Al-Ain Homes, that would have assisted this Commission in coming to a conclusion as to whether the 1st O.P. is engaged in construction of apartments or not.
Ext.A1 is an agreement dated 10/07/2014 entered into between OPs 2 & 3 as first party and the complainant’s husband as the second party. The recitals therein in paragraph 1 (page 2 of Ext.A1 agreement) shows that the 1st OP is the owner in absolute possession and enjoyment with rights to transfer the property. The agreement for construction is entered into between the complainant’s husband and the OPs 2 & 3.
Ext.A2 is the sale deed. The said deed is executed by the OPs herein. The recitals in Ext.A2 shows that OP1 is having absolute right, title, interest and possession over the property upon which the apartment complex is constructed.
Thus, we are concluding that the 1st OP is only the land owner and has got nothing to do with the construction of the apartment complex.
8. Since the complaint is with regard to the construction of the apartment complex, OP1 is not a necessary party to this dispute.
Issue No.3
9. In the facts and circumstance of the case, this issue is being considered before Issue 2.
10. Complainant alleged that as per Ext. A1 agreement, registration was to be completed by 31/12/2015. But registration was effected only by July, 2018. O.P.s contended that delay occurred as the complainant did not effect regular payments.
11. It is to be noted that even though the O.P.s contend that construction was completed at a very early stage, they had not produced any documents to prove the date on which completion certificate was obtained. At the time of hearing, counsel for the O.P. argued that completion certificate to each apartment would be availed only when the apartment is ripe for transfer, failing which they will unnecessarily have to pay building tax.
12. Had the contention of O.P.s that there was delay in payment by the complainant been true, there would have been a demand made by the O.P.s to pay the entire consideration, once the construction is completed. O.P.s 2 and 3, having duly constituted a Firm, Al-Ain Homes, are duty bound to maintain and upkeep the documents in a meticulous manner as required by various statures, so as to protect the fiduciary, legal and beneficial interests of the firm. Any failure to maintain records can only be considered as an infringement of various laws, especially when complainants and O.P.s stand in a fiduciary relation to each other.
13. Being in a fiduciary relationship, the OPs are bound by law to maintain documents and records pertaining to the transactions between the complainant and the O.P.’s firm as stated supra. But the O.P.s have failed to produce any documents pertaining to the construction of the apartment or transactions with the complainant, except Ext.B1, an order of Munsiffs’ Court in an I.A.
In the absence of any documents pertaining to the transactions between the complainant and O.P.s, this Commission is forced to resort to adverse presumptions as against the O.P.s.
14. Consequently, we hold that registration was not delayed due to non-payment of consideration by the complainant, but solely due to factors attributable to the O.P.s, which they are insistent not to divulge.
Issue No. 2
15. As a precursor to this discussion it is pertinent to note that the complainants had taken out an expert commissioner. Expert Commissioner filed his report dated 18/1/2023 which was marked as Ext.C1. Some of the matters that were sought to be looked into transcended the pleadings. Considering the technical nature of the construction as well as the fact that the complainant is a layperson with regard to construction of building and that OPs had not raised any objection with regard to the matters that were sought to be reported we are not looking into the legality of the complainant going beyond the pleadings.
16. Grievance of the complainant, with regard to the assured facilities not granted, as can be seen from the complaint pleadings, are as follows:
(1) that the OPs failed to provide tress work;
(2) security room is not rendered functional;
(3) common area is not kept clean;
(4) low quality paint and putty works are executed;
(5) Malampuzha water (KWA connection) is not provided;
(6) OPs failed to provide cooking gas pipes;
(7) leakage;
(8) failure to provide garbage disposal facilities; and
(9) failure to provide road access to main road.
17. Matters that were sought to be looked into and reported by the Expert Commissioner and his findings are as herein below:
1. Four boundaries of the property
Since this issue is not a part of the dispute herein, we are not concerned about this issue
2. Balance construction work like car parking facility, roof truss work, providing security room, common lift facility, water connection etc:
i. Car parking:
(a) Commissioner could not identify the areas earmarked for car parking as the building plan produced by Palakkad Municipality is not a completion drawing, but only a revised building permit plan and there is no car parking plan with that.
(b) Since the complainant has not taken any further steps to object to this finding of the Expert Commissioner, we are not pursuing this matter. Further, complaint grievance was with regard to seeking additional amounts for car parking and not non-allotment or its allocation.
ii. Roof top tress work:
(a) 75% of entire roof top tress work was found completed. Only the top sheeting fixing work and rain water gutter fixing work is pending. This work could be completed by fixing the balance roofing sheets and rain water gutters on the already erected steel frames.
(b) There is no document to prove that this is a part of any work that was agreed by the O.P.s, and left incomplete. Complainant has failed to prove that there is deficiency in service on the part of OPs on this count.
iii. Providing Security rooms:
Commissioner has found that there is a security room.
iv. Common lift facility:
Commissioner has found that there is a lift in satisfactory condition.
v. Water connection:
(a) Expert commissioner has observed that there is no KWA water connection for the residents in the apartment. O.P.s had filed objection stating that KWA facility was already provided. But no documentary evidence was produced by the O.P.s to substantiate their case that KWA water facility was provided.
(b) From pleadings and counter pleadings what is to be considered is whether the O.P.s were bound to provide KWA water facility to the complainant.
(c) Counsel for the O.P. argued that there was no agreement between the complainant and the O.P.s for providing KWA water and that they undertook to provide KWA connection as a gratuitous act.
(d) Ext.A2 is the sale deed. Page 11 of Ext.A1 contains schedule B. Schedule B contain 3 items. The 1st item contains electric connection and water connection. The 3rd item contains common amenities and common areas wherein borewell and overhead water tank are included. Thus, the contention of the OPs that they had undertaken to provide only borewell and overhead water tank are falsified. The OPs had undertaken to provide water connection, which, considering the presence of borewell in item 3, can only mean the water connection from KWA.
(e) Exts.A3 and A4 are two communications issued by the Residents’ Association to the OPs. Ext.A5 is the reply made by OPs to Ext.A3 & A4. Ext.A3 & A4 are communications wherein the Field View Enclave Apartment Owners’ Association has, as can be presumed by its language and its tone, demanded the OPs to provide KWA water connection. To the said documents, OPs 2 & 3 replied stating that they had taken all steps and that it was due to the delay on the part of Municipal counsel that water connection facility could not be provided by them. There is no statement whatsoever in Ext.A5 stating that providing water connection is a gratuitous act and they are not bound by any contracts or agreements. Consequently, the only conclusion that we can arrive at is that there has been an express agreement by which the opposite parties are bound to such an extent that the complainants could dictate terms. OPs have failed to produce any documents to prove that they have taken all timely efforts to provide water connection to OPs.
(f) Having failed to do so, the only presumption that can be arrived at is that there is deficiency in service on the part of OPs in not providing KWA water connection. We hold that O.P.s are bound to provide KWA water facility. This is not a gratuitous act on the part of the O.P.
3. Other deficiency in completing the construction work like leakage in the roof concrete, poor painting and putty works of the wall.
i. Leakage in roof concrete:
(a) Commissioner found that the roof is having leakage issues and that it would stop once the tress work is over.
(b) Since leakage has started within 5 years of construction, we hold that the construction is defective.
ii. Poor painting and putty work on the wall:
(a) The painting and putty work are not done in a proper manner. Commissioner found shade changes in the wall in some particular areas, due to improper putty and painting work. The outer and inner wall areas of the apartments need proper maintenance by cleaning and applying proper putty work and two coats of weather - shield or equivalent paints for preventing the building for further leakage issues.
(b) Counsel for the OPs filed objection to this finding of the expert commissioner and argued that findings of the commissioner in this regard cannot be given importance since inspection was carried out 5 years after application of putty and painting.
(c) We find some merits in the contention of counsel for OPs that dirt tend to accumulate with passage of time of nearly 5 years. But we cannot approve of the contention that troubles with application of putty will arise within 5 years.
(d) Therefore, we hold that the application of putty is defective.
4. Recreation area is not provided as per building plan:
(a) Commissioner could not identify the recreation space details as the plan produced by Municipality did not include the car parking and recreation space details.
(b) Since the complainant has not taken up this matter and raised any relief touching this portion, we are not dealing with it.
5. Violation of Rules in construction of the entire structure:
Nothing is forthcoming in the report touching this aspect. Complainant has not raised any objection regarding absence of any report in this regard.
- Points as requested by the complainant at the time of inspection
- Inner walls of bedrooms have suffers from water seepage due to exposure of external wall.
This issue can be solved by applying exterior water proof primers and high quality water proof paints on the outer and inner surface of walls.
- Paint and plastering of outer walls of bathrooms are damaged due to water seepage from bathroom.
To cure this defect, bathroom walls and floors should be properly water proofed after removing the tiles and tile mortar and applying water proofing chemicals and fixing new tiles on the walls and floors. Gaps between tile joints are to be sealed using sealing agents like epoxy.
- Rainwater falling on balcony floors into the apartment due to lack of vertical shades and due to improper slant into the apartment.
This complaint can be cured by providing a fabricated sunshade using poly carbon sheet or any other equivalent material to avoid rainwater coming inside the balcony.
18. The 2nd and 3rd OP filed details objection to Ext.C1 report. Detailed objections are the following:
1) KWA water connection is already provided. There is sufficient storage facility in the apartment facilitating connection to each flat owner as well.
2) Painting and putty work were done in proper manner and the damages, if any are due to long usage of over 5 years.
3) Remedial measures are to be taken by the flat owners’ association.
4) The minor complaints, if any, has occurred due to non-maintenance of the flat in periodical intervals by the owners after its purchase.
19. Filing of objections apart, the O.P.s have not cared to cross examine the expert to assay the veracity or discredit the contents of Ext. C1. Therefore, we are relying on Ext. C1 to come to a conclusion as regards the matters that are dealtwith therein.
20. The complainant had not taken any step to prove grant of access to main road and issues regarding waste disposal.
Issue Nos. 4
21. It is a case of the complainant that having once fixed the value of the property at the time of registration, the O.P.s 2 and 3 demanded an extra payment of Rs. 1,50,000/- for car parking facility. OPs have objected to these pleadings. Complainants have not adduced any evidence to substantiate this allegation.
22. Thus, the complainants have failed to prove the allegation of demand for Rs.1,50,000/- towards covered car parking expenses.
Issue No. 5
23. Resultant to the discussions above, we hold that there is deficiency in service on the part of OPs 2 & 3 on the following counts.
1) There is delay on the part of O.P.s 2 & 3 in effecting registration of sale.
2) There is failure on the part of O.P.s 2 & 3 in providing KWA water supply.
3) Roof top suffers from leak.
4) Putty works are defective.
5) Balcony walls, bathroom and bedroom of the complainant’s apartment suffers from leakage or water seepage.
Issue No. 6
24. Reliefs sought by the complainant are as follows:
1. Complainant seeks compensation of Rs. 5,00,000/- for deficiency in service and a direction to OPs to complete the assured service. It is true that there is deficiency in service on the part of the O.P.s. Complainant could prove 7 defects as stated above. But we hold that a compensation of Rs.5,00,000/- is excessive.
2. Complainant has sought for interest at the rate of 12% on the consideration that he has paid from the date of payment. We do not understand the logic of this relief. Complainant has already received the apartment for the consideration paid. When the complaint is receiving a reasonable compensation, complainant is not entitled to this relief.
3. Complainant is entitled to costs.
4. Complainant is entitled to incidental reliefs if the need arises.
Issue No. 7
25. This complaint is allowed in part on the following terms:
1. OP1 is absolved of any liabilities in this dispute. Liability is cast on Alain Homes, the firm constituted by OPs 2 & 3 and on OPs 2&3 and their properties.
2. Compensation for delay in construction : Rs.2,00,000/-
3. Compensation for not providing KWA water supply : Rs. 1,00,000/-
4. Compensation for water leak in bath room,
bedroom & balcony : Rs. 1,00,000/-
5. O.P. s 2 and 3 are directed provide KWA water connection to the complainants within 60 days from the date of receipt of this order.
6. OPs 2 & 3 shall carry out leak-proofing works of the terrace or complete truss work, within 60 days from the date of receipt of this order.
7. OPs 2 & 3 shall carry out putty works of the entire apartment complex using putty of good quality within 60 days from the date of receipt of this order. O.P.s need not carry out painting work.
- In the event, the O.P.s are not able to execute items 5, 6 & 7 as directed above, the Residents’ Association shall complete this work and the expense for the said work shall be reimbursed by the OPs 2 & 3. It goes without saying that the Association shall maintain proper accounts of the amounts expended.
9. The complainant is at liberty to repair her balcony, bedroom and bathroom walls at their expense and have the expense reimbursed by the O.P.s. Needless to say, complainant shall maintain proper accounts by documentation of expenses incurred.
10. Complainant is entitled to Rs. 20,000/- by way of cost.
Sd/-
Vinay Menon V
President
Sd/-
Vidya.A
Member
Sd/- Krishnankutty N.K.
Member
APPENDIX
Exhibits marked on the side of the complainant
Ext.A1 - Copy of Agreement dated 10/7/2014
Ext.A2 – Copy of Sale deed No. 3092/18
Ext.A3 - Certified copy of communication dated 17/1/2019
Ext.A4 - Certified copy of communication dated 11/3/2019
Ext.A5 – Certified copy of reply dated 14/3/2019
Ext.A6 – Copy of Car Parking and Recreation Details Plan in the records of Municipality.
Ext.A7 – Copy of Housing Loan Agreement between complainant’s husband and OPs
Exhibits marked on the side of the opposite party:
Ext.B1 – Copy of Order in IA 907/2022 in OS 162/2022
Court Exhibit:
Ext.C1 – Report of expert commissioner.
Third party documents: Nil
Witness examined on the side of the complainant:
Nil
Witness examined on the side of the opposite party:
Nil
Court Witness: Nil
NB : Parties are directed to take back all extra set of documents submitted in the proceedings in accordance with Regulation 20(5) of the Consumer Protection (Consumer Commission Procedure) Regulations, 2020 failing which they will be weeded out.
