Per Mr.P.N.Kashalkar, Hon’ble Presiding Judicial Member

This is an appeal filed by the original complainants whose complaint was partly allowed by the forum below. Out of so many reliefs one relief in respect of amount of `15190/- was allowed and O.P. was directed to refund to the complainant said amount within 4 weeks from receipt of order. Aggrieved by the inadequate relief granted, original complainants have filed this appeal.

Facts to the extent material may be stated as under:-

Complainants are the flat purchasers and respondent is the builder/ developer.  Complainants had purchased flats from M/s.Aarti Associates, resident of Chinchwad, Pune.  In all six complainants had taken possession of the flats on 2006-2007.  The complainants’ grievance is that respondent has failed to hand over possession of the flats on or before 31/5/2006 and nearly 18 months later possession was given.  As a result of this, it was the grievance of the complainants that they had to pay house rent during that period covering `2,08,000/-.  After taking possession, it was the grievance of the complainants that there were many defects in their respective flats.  Windows were without grills, no proper window finishing was done, kitchen tiles were cracked, sink had leakage, tiles in the kitchen below the sink were of low quality and unfinished.  Wash basin tiles were not fitted upto the ceiling height.  Latch of the main door and the stoppers were not properly fitted, flooring tiles were unleveled.  Plumbing was also defective.  Flush provided in the latrine was not working properly.  There was no proper outlet for water in balconies. Finishing work of windows in all the rooms was not proper.  There was leakage from the sliding window and finishing work of flats was not to the satisfaction of the flat purchasers/complainants, due to poor quality and sub standard quality and rectification was required to remove those defects.  They also mentioned in the complaint Common facilities defects.  The water tank was not shown in the building sanction plan. The height of compound wall was less than agreed.  Flooring work in parking place was not proper. Entrance gate was kept in centre causing inconvenience.  Fabrication of gate was also of low quality.  Fitting and wiring of wire or motor pump was not properly done.  Outstanding bill of `15,190/- was not paid by the respondent in spite of huge amount of `40,000/- taken from all the complainants.  Outstanding water charges were not paid. Plumbing work on terrace was not proper, the overhead water tank does not have drain valve, so also the ladder attached to overhead water tank was dangerous being of very low and poor quality.  According to complainants, all these defects caused mental harassment, mental agony and they had to get rectified all the defects by spending monies. Complainant sent notice through advocate to the O.P.

As a reply to its notice, O.P. sent Completion Certificate along with reply to the complainants.  Complainants were also having grievance that they have been given lesser area than agreed and for all these defects they had prayed for the total amount of `8,58,205/- from the O.P.  They further prayed that flat no.4 should be transferred in the name of all flat purchasers in the office of PCNTDA and also to make expenses for the same. 

They also claimed cost of `2000/-.

O.P. filed written version and contested the complaint.  According to O.P. transactions carried out between complainants and respondent were totally different from each other and hence independent cases were required to be filed by each complainant. O.P. pleaded that section 12(c) would not be applicable.  O.P. pleaded that complaint as filed by the complainants is not within limitation. O.P. had issued possession letter after receiving outstanding amount from the complainants. Physical possession of the flats was given to the complainants on different dates. Complainants have made delayed payment to the O.P. and committed breach of agreement.  After receipt of possession letter and physical possession of the flats, objections were raised by the complainants.  Since there was delayed payment, possession of the flats was given belatedly to all the flat purchasers. O.P. pleaded that no proof has been adduced by the complainants about payment of rent to anybody during the period when there was delay in giving possession.

O.P. further pleaded that complainants had taken possession after full inspection of the flats and acknowledgement of possession letter itself shows that there is no grievance regarding defects or lack of facilities. PCNTDA issued Completion Certificate and Occupation Certificate and those certificates would reveal that respondent had carried out all the work as per sanctioned plan. O.P. pleaded that complainants have not filed single document on record to show that expenses were incurred towards water meter, plumbing, flooring, leakage, etc. by them.

O.P. pleaded that they paid MSEB charges upto November 2006 and after the possession, complainants are required to pay MSEB charges, so is the case of water charges.  O.P. also pleaded that they executed deed of declaration on 24/2/2006 in favour of PCNDT and registered on 16/2/2006. Therefore, complaint as filed by the complainants is absolutely false and should be dismissed with cost.

Upon hearing Advocate Mahajan for the complainants and Advocate Ghorpade for the O.Ps, forum below framed two points. First was whether complainants prove deficiency in service on the part of respondent? and second point was whether complainants are entitled to the relief claimed?  Forum below gave finding that complaint is partly allowed.  Only MSEB bill is required to be paid by O.P.  Forum below thus found that virtually there was no merit in the complaint filed by the complainants, except for the fact that amount of `15,190/- was overcharged and forum below was of the view that that amount should be refunded to the complainant by the O.P.  Other than this, forum below relying on affidavit and documents held that complainants failed to prove that there was any defect or lacuna as alleged by the complainants in their respective flats. 

In para 12 of the judgement, forum below clearly observed that while taking possession of the flats, complainants had taken inspection of their flats and noted no grievances regarding defects of the flat and within a year they have started pointing out various grievances and defects. They had not adduced any expert opinion in respect of each flat.  Expert opinion adduced by them is also vague in nature.  No specific grievance regarding each of the flats or its rectification had been mentioned. Expert opinion does not speak about defects noticed in each flat separately. Forum below was of the view that for every flat grievance should have been mentioned separately.  Making general sweeping statements about the defects was not sufficient according to District Consumer Forum. 

As for delayed possession, forum below noted that as per registered agreements, flat purchasers had not adhered to the payment schedule. So they had no right to allege that O.P. had given them delayed possession. They had not produced list of documents to show that each of the flat purchaser was required to pay monthly rental of the premises since flats were not given in time by the O.P.  Forum below noted in para 10 that affidavit of Shri Siddharth T.Ramchandran, affirmed and signed by Mr.T.Ramchandran who is power of attorney holder of Shri Siddharth T. Ramchandran is contrary to the provisions of Consumer Protection Act, 1986. Forum below relying on Supreme Court judgement reported in AIR 2005 Supreme Court 439 Janki Vashdeo Bhojwani & another v/s. Indusind Bank Ltd. & others held that Power of attorney holder cannot depose for the acts done by principal and not by him.  So on this count, the affidavit of Mr.T.Ramchandran filed on behalf of the complainant was turned down because power of attorney holder cannot have personal knowledge like that of his principal.  In the circumstances, forum below ultimately held that there was no deficiency in service on the part of the respondent since no cogent proof was adduced in that behalf by the complainant or complaintwise. Forum below therefore partly allowed the complaint and simply directed appellant to pay MSEB bill of `15,190/- to the complainant within four weeks from receipt of order and disallowed rest of the claims made by the complainants.  Aggrieved by the same complainants have filed this appeal.

We heard submissions of Mr.J.S.Jadhav proxy Advocate for Mr.V.S.Tapkir-Advocate for the appellant and none for the respondent.

          We are of the view that the judgement and award passed by the District Consumer Forum partly allowing the complaint is tenable in law.  Complaint as filed by the complainant and expert opinion as relied by the complainants was general in nature and not specific. If the complainants wanted to ventilate their grievances listed, they should have filed separate complaints listing the defects noticed by them in each flat.  Instead of doing so, 6-7 complainants came together and filed the consumer complaint together procuring one expert opinion.  That opinion was also not specific in respect of specific flats but it was general one and, therefore, forum below did not think it fit and proper to rely on the said expert opinion and to give any relief to the complainants. Clear cut case was not made out by the complainants in respect of various grievances and defects pleaded by the complainants in their complaint.  Focus of the complainants was in respect of giving delayed possession and they had claimed compensation for delayed possession because it was their case that they were required to spend lot of money on monthly rentals but forum below noted in its order that they had not produced cogent evidence in respect of rental receipts that they were paying monthly rent to somebody else to occupy rental premises during the period when possession was assured and when possession was actually given by the respondent/builder.  Likewise, forum below rightly held that they were not entitled to compensation for delayed possession for the simple reason that they had made delayed payment and they had not adhered to the payment schedule mentioned in the registered agreement executed between the individual flat purchasers and builder/O.P.  In the circumstances, forum below simply held that builder was required to pay monthly electricity bill of `15,190/- only to the complainants and for that purpose only complaint was partly allowed and that bill was directed to be paid by the O.P. to the complainant.  Rest of the claims were rejected in toto by the District Consumer Forum for want of cogent evidence on record. Thus, we are finding that forum below rightly appreciated facts and evidence on record and gave correct finding while partly allowing the complaint in favour of the complainants. Said order in our view is just, proper and sustainable in law and there is no question of granting further reliefs claimed by the complainants because no evidence was adduced in that behalf by the complainants. Even affidavit filed on record was also not relied for the simple reason that affidavit was sworn by power of attorney holder of one Shri Siddharth T. Ramchandran, who may not have personal knowledge about the defects and deficiencies mentioned in the complaint by various flat purchasers.  In this view of the matter, we are finding no substance in the appeal. Hence, we pass following order:-

                                                          ORDER

Appeal stands dismissed. 

Parties are left to bear their own costs.

Inform the parties accordingly.