O R D E R

SRI.D. KRISHNAPPA, PRESIDENT:

        The brief facts of the complaint filed by the complainant against the Ops are, that he entered into an agreement of sale and construction with Ops on 22/06/2005 for purchase of apartment No.3047 in IV floor of Block No.3 in Prestige Shanthinikethan and undivided interest with facility for one car parking.   That under the construction agreement dated 22/06/2005 second Op agreed to complete the construction within 36 months from 01/07/2005 with a grace period of 3 months in case of delay without having to pay to him any interest or damages.  It was also agreed that if he find any defects in the construction of the building, at the time of taking over apartment, the second Op would attend and rectify the same.  On 06/03/2010 second OP delivered vacant possession of the apartment and also agreed to attend to the defects if any noticed during taking over of the possession.   As per agreement, the second Op was required to deliver possession on 01/10/2008 which is inclusive of grace period of 3 months.  That second Op on 11/12/2009 issued a letter stating that major part of the work was over and possession letter was issued on 06/03/2010 amongst other issues there were various defects found in the building and the second Op had agreed to lay vitrified tiles for living room, dining hall, bedrooms and in kitchen.  Thereafter, the second Op issued a letter dated 17/12/2005 amending the undertaking and stated to have upgraded the floor in living, dining and bed rooms from vitrified tiles to laminated wooden flooring without additional cost.   There was uneven flooring of the house and found defects in the alignment in the flooring with gaps near wardrobes due to rear finishing of the flooring.  The complainant’s further referring to unevenly laid wardrobes, shutters etc., has stated that the Ops had caused many defects in the completion of apartment.   That he had got the kitchen redone albeit with several defects and was at that time of handing over, forced to sign a letter accepting that the job was done to his satisfaction.  That cupboards were removed by the second Op only after he was forced to sign a letter accepting the kitchen works and only thereafter a sum of Rs.94,140/- was refunded to him towards the cost of cupboards and thus, complainant attributing deficiency in the construction of the apartment has prayed for a direction to the Ops to refund him the cost of redoing the kitchen by getting it done through a person of his choice in a sum of Rs.2.00 lakhs, to direct Ops to pay Rs.3.00 lakhs towards cost of relaying the wooden floor with vitrified tiles, to pay interest for commencing from 08/02/2008 till date @ 18% p.a on Rs.94,140/-, cost of the wardrobe refunded amounting to Rs.46,600/-, to pay interest @ 18% p.a on Rs.29,18,682/- paid in advance to Op No.2 from 01/10/2008 amounting to Rs.7,88,044/-, to pay damages of Rs.2.00 lakhs and to award cost.

          2. Op No.1 is duly served with the notice as remained absent is set ex-parte.  Op No.2 has appeared through his advocate and filed version, contending that the complainant has accepted possession of the flat without demur and has given feed back by filling the feed back form graded work satisfaction.   But 8 months later has filed this false complaint.   It is further stated that kitchen has been done to the satisfaction of the complainant and complainant has even signed a letter to that effect as stated by him in Para 16 of the complaint and therefore, termed the complainant allegations as false.    Further, the complainant with her complaint without any demur accepted Rs.94,140/- as refund of the cost of the wardrobes.   Therefore, the complainant is estopped from claiming any additional amount.   Terming the allegations of the complainant that there is uneven flooring has denied the other allegation of the complainant regarding deficiency in completion of the apartment and has prayed for dismissal of the complaint.

          4. In the course of enquiry into the complaint, the complainant and authorized signatory of second Op have filed their affidavit evidence reproducing what they have stated in their respective complaint and version.   Complainant along with the complaint has produced a copy of agreement of sale, copy of construction agreement, Xerox copies of photographs of wardrobes and flooring of the flat of the complainant which are inclusive of photographs of kitchen.  Op No.2 has produced a copy of letter he had addressed to the complainant and a copy of feed back form signed by the complainant.   We have heard the counsel for both parties and perused the records.

          5. On the above contentions, following points for determination arise.

1. Whether the complainant proves that the Ops have caused deficiency in their service in not rectifying the defects noticed in the completion of the work of the apartment.
2. To what relief the complainant is entitled to?

5. Our findings are as under:

Point No.1 : In the negative

Point No.2 : See the final order

REASONS

6. Answer on point No.1: There is no dispute between the parties that the complainant took delivery of the possession of the flat from the Ops on 06/03/2010.   Op No.2 in the version and also in the affidavit evidence contended that complainant took possession of his flat without any grumbling by even recording satisfaction in the feed back form signed and given by him to them.   The complainant in Para 16 of his complaint has stated as if at the time of taking possession of the flat he was forced to sign a letter accepting that job was done to his satisfaction.  Hear the complainant has admitted to had signed to a feed back form stating that works of the flat had been done to his satisfaction.   But the complainant has now contended to the contrary, alleging as if wardrobes and kitchens had not been done to his satisfaction.   If that is his case then burden is on him to prove that, inspite of those two works having had not been done to his satisfaction he was forced to sign to that feed back form.  But absolutely he has not made any effort to substantiate that allegation.   The complainant himself has produced a letter of Ops dated 06/03/2010 addressed to him on which date possession was delivered to the complainant.   In the part of this letter Ops have stated and agreed to attend to any snags and defects that the complainant notice during taking over possession and the same will be completed in due course.   Admittedly, as on 06/03/2010 when the complainant took over possession of the flat found to had not pointed out or identified any snags or defects in the construction or works necessitating Ops to carry out.  The complainant having not observed any snags or defects as on the date of taking over the possession has only for the first time on 30/04/2010 through his e-mail pointed out to the Ops regarding not rectifying wardrobes and kitchen, probably kitchen cabinet.  He has also referred to in not refunding the wardrobe cost to him because of bad quality work and material used and requested to take back the kitchen cabinet.   The complainant in this e-mail has only pointed out the defects in the wardrobes and kitchen and did not raise any objection with regard to any other works or defects.  Again in the second e-mail dated 20/05/2010 the complainant referred to the same defective works and did not point out to any other defects.   Then in his another e-mail dated 03/06/2010 besides reminding the Ops in not sending cheque towards cost of the wardrobes, pointed out certain minor defects in fixing hob and some other minor works but the complainant through this complaint has come up with several other allegations of defective works which in our view is exaggerative.

7. The complainant in the complaint has prayed for awarding damages of Rs.2.00 lakhs towards the cost of the kitchen.   Op under the contract agreed to fix vitrified tiles to the kitchen flooring, as against that he later agreed to substitute it with wooden flooring without extra cost and that the complainant as already pointed out above, admitted in his complaint and affidavit that he got the kitchen redone and stated that albeit with several defects.  But has not proved those defects by any independent evidence.  Therefore, the complainant in our view is not entitled for cost of the kitchen at Rs.2.00 lakhs as claimed.   The complainant has also prayed for Rs.3.00 lakhs against the Ops towards the cost of re-laying wooden flooring with vitrified tiles in the areas where the wooden flooring has been installed.   The complainant again has not proved the necessity of relaying vitrified tiles in place of wooden flooring.   The complainant’s 3^rd relief of payment of interest @ 18% p.a on Rs.94,140/- is concerned, admittedly he has received this amount as the cost for replacement of wooden wardrobes without any demur when he received that amount he did not demand for payment of interest for the delay.   As seen from the e-mails the complainant sent to Ops as already referred to above, he only reminded the Ops to see that cheque for refund of Rs.94,140/- to be given to him as early as possible without further delay and he never demanded for payment for interest in case of delay.  Even at the time payment of that amount to him he did not receive under protest nor claimed interest thereafter by sending any demand.  Thus this prayer also do not stand for consideration.   Similarly, the complainant has prayed for awarding interest against Ops @ 18% p.a on Rs.29,18,682/- probably the cost of the flat.   Here at the cost of repetition, we are constrained to hold that the complainant had never thought of demanding payment of interest on the cost of the flat either as damages for the delay if any in delivering the possession of the flat or in any other form earlier.  Absolutely, there was no demand made to Ops for such interest at any time.   The complainant is therefore now is estopped from making such claim against the Ops took possession of the flat without any demur and without any demand thereafter.  This complaint which in our view is nothing but an attempt found to have been made by the complainant to gamble in the form of alleged deficiency in the service of Ops.   Thus, the complaint in our view lack merits and is liable to be dismissed.   As the result, we answer point No.1 in the negative and pass the following order.

O R  D  E  R

        Complaint is dismissed.

          Parties to bear their own cost.