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: 19/05/2022
CC/93/2022
Manikantan Rajagopalan,
S/o.Rajagopalan,
Ayyappa Nivas, Munnoorcod (PO),
Thrikaderi, Palakkad
Rep.by POA Rajagopalan,
Ayyappa Nivas, Munnoorcod (PO),
Thrikaderi, Palakkad - 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, 290/19, 19/2020 & 79/2020. 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 given 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 his name after executing sale agreement, that O.P.s failed to provide tress work, Malampuzha water facility, facilities for availing gas connection, functional security room and clean common areas even after retaining the corpus of maintenance fund. He is also aggrieved by the lack of quality in the paint and putty applied and electrical appliances used. Walls of the complainant’s apartment suffers from dampness. O.P.s had availed Rs. 9,54,552/- in excess of the required amount. Filing is caused as the complainants are aggrieved by the aforesaid conduct of OPs 1 to 3 who are partners of one Alain, 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 or with Al-Ain Homes. 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 or Al-Ain Homes. 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 registration. O.P.s had not undertaken to provide Malampuzha water facility. O.P.s had not availed additional amounts for registration.
Issues
- The following issues were framed for consideration:
- Whether the complaint is barred by limitation?
- 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 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. Since this complaint was filed during 2022, complainant was directed to file a Miscellaneous Application before admitting the complaint to see if the complaint was barred by limitation. Accordingly an Application as M.A. 11/2022 was filed seeking condonation of delay of 78 days. But it transpired that by virtue of relaxation of limitation period, the complaint was not barred by limitation.
Issue No.2
8. 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. This issue was framed based on this denial. The complainant had not taken any steps to prove the role in 1st O.P. in the partnership firm by calling for 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.
On going through the recitals in Ext. A2 agreement dated 16/08/2017 entered into between OP 1 and Complainant herein, we find that O.P.1 is the builder of the property. She was not even acting in a capacity of Power of Attorney.
Ext.A1 is the sale deed. The said deed is executed by the OPs 1 to 3 herein. Recitals in Ext.A1 cites O.P.1 to be the land owner and O.P.s 2 and 3 to be the builders.
Thus, we are of the opinion that the 1st OP, though not a partner, is an integral part of the construction of the apartment. But as her capacity is not clarified by the complainant so as to cast liability on her, we are not proceeding as against the O.P.1.
9. We hold that OP1 is not a necessary party to this dispute.
Issue No.4
10. In the facts and circumstance of the case, this issue is being considered before Issue 3.
11. Complainant alleges that as per Ext. A2 agreement, though registration was to be completed by 01/01/2018, registration was effected only by July, 2018. O.P.s contended that delay had occurred solely due to the irregularity of payments effected by the complainant.
12. 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.s 2 and 3 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.
13. 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, so as to protect the fiduciary, legal and beneficial interests of the firm. This is also a statutory requirement. Any failure to maintain records can only be considered as an infringement of various laws especially when complainant and O.P.s stand in a fiduciary relation to each other.
14. 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, except Ext.B1, an order of Munsiffs’ Court in an I.A., O.P.s have failed to produce any documents in the custody of the firm pertaining to the construction or transactions with the complainant. In the absence of any documents pertaining to the transactions between the complainant and O.P.s, this Commission will be forced to resort to adverse presumptions as against the O.P.s.
15. Ergo, we hold that registration favouring the complainant 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. 3
16. As a precursor to this discussion of this Issue, it is pertinent to note that the complainant 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.
17. 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 functional;
(3) common area is not kept clean;
(4) painting and putty works are executed using low quality materials;
(5) electric fittings are of low quality;
(6) Malampuzha water (KWA connection) is not provided;
(7) OPs failed to provide cooking gas pipes; and
(8) apartment walls suffer from damage.
18. Matters that were sought to be looked into and reported by the Expert Commissioner and his findings are as herein below stated:
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:
- 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.
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.A2 contains schedule B. Schedule B contains 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.A5 and A6 are two communications issued by the Residents’ Association to the OPs. Ext.A3 is the reply made by OPs to Ext. A5 and A6. Ext. A5 and A6 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:
- The painting and putty work are not done in a proper manner. Commissioner found shade changes in the wall in some particular areas. The application of putty is not done in a proper manner, so that patches were observed in some of the areas of wall 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 OP 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 would accumulate with passage of time of over 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.
6. Points as requested by the complainant at the time of inspection
Paint and plaster on the bathroom walls are damaged due to water seepage from the bathroom as bathrooms are not water proofed.
Bathroom walls are to be properly water proofed after removing the tiles and tile mortar and applying water proofing chemicals on the floor and thereafter fixing new tiles on the walls and floor and applying sealing agents like epoxy at the tile joints.
19. Filing of objections to Ext. C1 report 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 dealt with therein.
Issue No. 5
20. 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) Delay on the part of OPs 2 & 3 in completing construction of the apartment.
2) Failure on the part of OPs 2 & 3 in providing KWA water supply.
3) Presence of roof top leakage
4) Defective putty works.
5) Damaged painting and plastering of the apartment walls.
Issue No. 6
21. Reliefs sought by the complainant are as follows:
1. Compensation to a tune of Rs. 8,95,000/-. In the facts and circumstances of the case, we hold that this amount is excessive.
2. Direction to complete the assured works left incomplete. We find that this relief is reasonable.
3. Payment of interest @ 12% on the consideration paid to the O.P.s from the respective dates. 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.
4. Cost and such other reliefs that are incidental and ancillary. Complainant is entitled to cost but not incidental reliefs.
Issue No. 7
22. 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 registration : Rs. 50,000/-
3. Compensation for not providing KWA water supply : Rs. 1,00,000/-
4. Compensation for damage of walls : Rs. 50,000/-
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.
8. 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 complainants are at liberty to water proof the bathroom 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.
Pronounced in open court on this the 26th day of February, 2024.
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 Sale deed No. 2633/18
Ext.A2 – Copy of Agreement dated 16/8/2017
Ext.A3 - Certified copy of communication dated 17/1/2019
Ext.A4 - Copy of Car Parking and Recreation Details Plan in the records of Municipality.
Ext.A5 – Certified copy of reply dated 14/3/2019
Ext.A6 – Certified copy of communication dated 11/3/2019
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.
