Date of Filing      : 29.03.2021

                                                                                                                 Date of Disposal : 28.02.2023

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION THIRUVALLUR

 

 BEFORE  TMT. Dr.S.M. LATHA MAHESWARI, M.A.,M.L, Ph.D (Law)                            .…. PRESIDENT

                 THIRU.P.MURUGAN,  M.COM.,ICWA (Inter),B.L.,                                           ......MEMBER-II

 

CC. No.21/2022

THIS TUESDAY, THE 28th DAY OF FEBRUARY 2023

 

1.Mrs.M.Dhanalakshmi,

    W/o.S.Muralidharan,

2.Mr.S.Muralidharan,

    S/o.Annamalai Srinivasan,

Both are Residing at 

II Floor, Grid Mayoor Apartments,

HIG-570, Mogappair Eri Scheme,

8th Street, Mogappair, Chennai 600 037.                                       ……Complainants.  

                                                                                 //Vs//

1.M/s.Grid Foundation, 

   Rep. by its Managing Partner P.Jayaseelan.

 

2.P.Jayaseelan, S/o.Parasuraman,

   Promoter/Partner M/s.Grid Foundation.

 

3.J.Aravind, S/o.P.Jayaseelan,

    Promoter Executive/Partner, M/s.Grid Foundation.

 

   Respondents 1 to 3 are at 

   Plot No.1448, Garden Avenue, 

   Anna Nagar West Extension,

   Mogappair, Chennai 600 037.

 

4.Housing Development Finance Corporation Limited (HDFC LTD),

   By its Authorised Signatory,

   Having its Regional Office at 2nd Floor, ITC Center,

   760, Anna Salai, Chennai 600 002.                                           …..opposite parties.

 

Counsel for the complainant                        :   Mr.S.Sushilkumar, Advocate.

Counsel for the opposite parties                 :   exparte 

                         

This complaint is coming before us on various dates and finally on 17.02.2013 in the presence of Mr.S.Sushilkumar Advocate, counsel for the complainant and the opposite parties were set exparte for non appearance and upon perusing the documents and evidences of the complainant this Commission delivered the following: 

ORDER

PRONOUNCED BY TMT. Dr.S.M. LATHA MAHESWARI, PRESIDENT

 

This complaint has been filed by the complainant u/s 35 of the Consumer Protection Act, 2019 alleging deficiency in service against the opposite parties along with a prayer to rectify all the defects found in respect of the construction of flat bearing No. C on the 2nd floor at Grid Mayoor in plot No.570, HIG 8th Street, Mogappair Eri Scheme, Mogappair, Chennai 37 and to pay a sum of Rs.50,00,000/- towards compensation for the mental agony and to pay a sum of Rs.5,000/- towards cost of the proceedings to the complainant.

Summary of facts culminating into complaint:-

It was the case of the complainant that the residential project namely ‘GRID MAYOOR’ with ground and two floors in plot No.570, HIG, 8th Street, Magappair Eri Scheme, Mugappair, Chennai 37 was promoted by the opposite parties 1 to 3. On seeing the project the complainant was attracted to purchase a flat in the said project and accordingly a three bedroom flat bearing No. C on the 2nd floor with a measurement of 1200 square feet of super built up area was booked by the complainant as the opposite parties convinced the complainant that the project was approved by the Authorities concerned.  It was stated that the flat purchasers in the ground floor had obtained housing loan from the 4th opposite party and hence it was stated by the opposite parties that all the standard norms has been followed by them. In view of the complainants past experience, they believed that the 4th opposite party would approve home loans only if everything is in order in the project and hence got convinced and purchased the property in the 2nd floor for a total cost of Rs.82,50,000/-. The opposite parties 1 to 3 provided the Xerox copy of the documents including E.C after repeated reminders.The home loan was availed by the complainant from the 4th opposite party.  As all the documents related to the project was available with the 4th opposite party only the personal documents from the complainant was sought by the 4th opposite party after paying the processing fee and legal scrutiny fees.  After obtaining legal opinion the complainant entered into construction agreement dated 12.10.2015 with the opposite parties 1 to 3 and registered the same on 17.11.2015 before the SRO, Konnur after clearance from the 4th opposite party who has sanctioned the financial assistance to the complainants for purchase of the flat.  On 27.11.2015 the complainants had completed the registration of Sale Deed and MOD in favour of the 4th opposite party.  The 4th opposite party also released the loan amount in a single payment. After completion of sale the opposite parties 1 to 3 did not show any urgency in rectifying the defects or completing the unfinished interior works in the flat. Even the transfer of Electricity connection, Property Tax and Water Tax connection in the complainants’ names were not carried out by the opposite parties 1 to 3 in spite of repeated reminders by the complainants.  The opposite parties 1 to 3 demanded and collected additional costs of Rs.3,85,655/- from the complainants apart from Sale Consideration without any reference, but still delayed the completion of the pending works. As a result the complainants’ occupation of the flat got further delayed unreasonably.  The EMI to the 4th opposite party commenced in November 2015.  The opposite parties 1 to 3 did not finish the pending works.  Without rectifying the defects in the flat by the opposite parties 1 to 3 the complainants had to occupy the flat in February 2016. Since opposite parties 1 to 3 were not showing any interest in arranging transfer of EB, Property Tax and Water Tax connections into the complainants’ names though the total costs of the flat was inclusive of these transfers also, the complainant had approached the concerned authorities.  The authorities demanded necessary papers.  In turn the complainants had sought the same from opposite parties 1 to 3 furnishing the papers sought by the authorities concerned.  The complainants had also applied for EC dated 2305.2016.  Finally in July 2016 the complainants had obtained the transfer of Property Tax in their names.  While arranging for the same, for the first time the complainants had come to know that contrary to the opposite parties projects, the complainants’ flat was only partly approved to the extent of 650 square feet alone and the remaining extent was unapproved.  All of the opposite parties have suppressed the true fact from the complainants and have clandestinely avoided furnishing the approved plan drawings.  The opposite parties had conspired together in cheating the complainants by selling them an unapproved flat.  Further the EC also revealed that the opposite parties 1 to 3 has also collected the same additional cost of Rs.14,49,450/-from the complainants for their partly approved 2nd floor flat as that collected for the fully approved 1st floor flat.  In that context also opposite parties 1 to 3 had cheated the complainants and caused huge monetary loss to them.  Even in the ground floor of the project flat, for about 300 square feet there is clear deviation in plan by the opposite parties 1 to 3.  The resale of the complainants flat has gone down terriby since the flat was only partly approved and the rest in unapproved.  The complainants have repeatedly approached the opposite parties to get their flat regularized for full approval by the authorities, but the opposite parties has postponed the issued on one pretext or other.  The opposite parties had thus adopted unfair trade practice in cheating the complainants. The opposite parties 1 to 3 have not handed over the original set of relevant parent documents and they had not provided the construction completion certificate till date.  The building is not proper as per the plan approval including Rain water harvests, Car parking, Bore Well etc.  The 4th opposite party has to defer EMI collection from the complainants or the other payment options to be proposed till the issues get resolved.  The opposite parties 1 to 3 have to arrange and earmark parking facility for the ground floor. The complainant sent legal notice to the opposite parties on 22.02.2018.  Thus aggrieved by the act of the opposite parties the present complaint was filed for the following reliefs as mentioned below; reliefs.

To direct the opposite parties to rectify all the defects found in respect of the construction of flat bearing No.C on the 2nd floor at Grid Mayoor in plot No.570, HIG 8th Street, Mogappair Eri Scheme, Mogappair, Chennai 37;

To pay a sum of Rs.50,00,000/- towards compensation for the mental agony;

 To pay a sum of Rs.5,000/- towards cost of the proceedings to the complainant.

 On the side of complainant proof affidavit was filed and submitted documents marked as Ex.A1 to A23. In spite of sufficient opportunities and notice the opposite parties did not appear before this Commission and hence they were called absent and set ex-parte on 05.08.2022 & 27.09.2022 respectively for non appearance and for non filing of written version within the mandatory period as per statute.

 

Points for consideration:

Whether the complaint is hit by limitation as prescribed under section 69 of the Consumer Protection Act 2019?

 Whether the alleged deficiency in service on the part of the opposite parties has been successfully proved by the complainant?

If so to what reliefs the complainant is entitled?

Point No.1:-

The following documents were filed on the side of complainant in support of their contentions;

Advertisement of the opposite parties was marked as Ex.A1;

Planning permission dated 17.06.2014 was marked as Ex.A2;

Building Permission dated 17.06.2014 was marked as Ex.A3;

Plan approval dated 17.06.2014 was marked as Ex.A4;

Floor plan was marked as Ex.A5;

Apartment cost detail was marked as Ex.A6;

List of documents required by the 4th opposite party for process the loan was marked as Ex.A7;

Email of the 4th opposite party dated 10.10.2015 was marked as Ex.A8;

No objection letter of the 1st opposite party dated 11.11.2015 was marked as Ex.A9;

Demand letter for processing fees dated 14.11.2015 was marked as Ex.A10;

Sale Deed of the complainants dated 27.11.2015 was marked as Ex.A11;

Construction Agreement dated 27.11.2015 was marked as Ex.A12;

Memorandum of deposit of title deeds dated 27.11.2015 was marked as Ex.A13;

Encumbrance Certificate dated 23.05.2016 was marked as Ex.A14;

Letter of the complainants dated 04.01.2018 was marked as Ex.A15;

Acknowledgement card was marked as Ex.A16;

Returned postal covers was marked as Ex.A17;

Legal notice issued by the complainant dated 20.02.2018 was marked as Ex.A18;

Returned postal covers was marked as Ex.A19;

Legal notice issued by the complainant dated 25.09.2018 was marked as Ex.A20;

Acknowledgement card was marked as Ex.A21;

Returned postal covers was marked as Ex.A22;

Valuation Report dated 25.10.2018 was marked as Ex.A23;

The issue as to limitation being a question of law was raised by this commission to the complainant. It was submitted by the learned counsel appearing for the complainant that the complaint was not hit by limitation as the non regularization being a continuous wrong, period prescribed of two years limitation did not apply to the complainant’s case.  He also cited the decision rendered by the Supreme Court of India in Civil Appeal No.4000/2019 dated 11.01.2022 in Samruddhi Co-operative Housing Society Limited Vs Mumbai Mahalaxmi Construction private Limited and decision rendered by the NCDRC in Revision Petition No.2530/2012 dated 11.04.2014 in Meerut Development Authority Vs Om Prakash Guptha &Anr and also the decision rendered by the NCDRC in Revision Petition No.1058/2014 dated 18.02.2014 in Ravi Developments Vs Mr.Jayantibhai V.Ranka in support of his arguments that the complaint is not hit by limitation. Thus he submitted that until the defects is rectified the cause of action continues against the builders for deficiency in service as it is a continuous wrong.

Heard the oral arguments and perused the pleadings and evidences produced by the counsel for the complainants. It is an admitted fact that in February 2016 the complainants had occupied their flat after possession was given to them.  The main allegation of the complainants is that all the opposite parties i.e., builders and the bankers jointly cheated the complainant in selling an unapproved flat to the complainant.  It is also one of the specific allegation against the 4th opposite party/the Bankers that the banker colluded with the promoters by providing housing loan for an unapproved flat thereby inducing the complainant to purchase the subject flat without approval. The citations relied upon by the learned counsel appearing for the complainant could be distinguished from the fact of the present case as follows;

The order rendered by the Supreme Court of India in Civil Appeal No.4000/2019 dated 11.01.2022 in Samruddhi Co-operative Housing Society Limited Vs Mumbai Mahalaxmi Construction private Limited discussed the point of limitation and had as that “there is a continuing cause of action in the present case as the respondent has failed to provide the occupancy certificate.  Due to the failure of the respondent to obtain the occupancy certificate, the members of the appellant have had to pay a 25% higher amount on account of the property tax and an additional 50% towards the water charges”. But in the present case as per the pleadings the complainant had mentioned in the complaint that he was not provided the completion certificate.  The nomenclature assumes significance that the completion certificate and occupancy certificate are different though sounds to be similar in nature.  It is seen that the completion certificate is provided on completion of the project and is issued to the Builders or Developers when the project was completed as per the approved sanction plan, whereas the occupancy certificate is granted after issuance of the completion certificate.  In the present case it is specific case of the complainant that as the flat itself was an unapproved or unregularized flat he was made to purchase by cheating and collusion by the opposite parties.  Hence, the non issuance of completion certificate could be considered as continuous wrong which provides continues cause of action against the builders. No complection certificate could be expected for an unapproaved flat at any time.

The 2nd order relied upon by the learned counsel for the complainant in Meerut Development Authority Vs Om Prakash Guptha &Anr rendered by the NCDRC in Revision Petition No.2530/2012 dated 11.04.2014 is also distinguishable from the facts of present case as the said order was passed with respect to non allotment of flat. The decision relied upon in the said order, B.Venu Madhav Vs National Consumer Disputes Redressal Commission, Represented by its Registrar, New Delhi & Ors in W.P.No.30394/2011, it was held that when the subject matter is immovable property and the amenities were not provided the same could be considered as continuing cause of action.  But in the present case the issue related to regularization of the flat and the complainant having purchased the unapproved flat cannot as a matter of right claim any amenities from the opposite parties.

The last decision relied upon by the learned counsel for the complainant rendered in Ravi Developments Vs Mr.Jayantibhai V.Ranka by the NCDRC in Revision Petition No.1058/2014 dated 18.02.2014 relates to non delivery of possession and hence the same also could not be taken into account. 

 Coming to the facts of the present case even as per the pleadings of the complainant he had admitted that the flat was occupied in February 2016. Further even if we take into consideration the date of knowledge about non approval of the project the same was mentioned as in July 2016 the complainants had obtained the transfer of property Tax in their name and while arranging for the same, for the first time the complainants had come to know that the complainants flat was only partly approved to the extent of 650 square feet only and the remaining extent was unapproved. Thus it is understood that the complainants came to know about the non approval aspect as early as on July 2017, however the complaint was filed only on 29.03.2021 well after the expiry of limitation period provided under the statute. Therefore when it is obviously seen that the period of limitation expired as February 2018, the  arguments advanced by the learned counsel appearing for the complainant that until the defect is rectified the same amounted to continuous wrong and hence the complaint is maintainable could not be accepted in the facts and circumstances when the complaint is apparently barred by limitation. Even for argument sake if the said submission is accepted, all defects and deficiencies until rectified constitutes continous wrong and then the concept of limitation itself will pale into insignificance and it can be said that all complaints filed even after two years of limitation would be maintainable.

 It is seen also seen that at the time of filing of the complaint the same was returned for want of a delay condonation application. However the same was not filed and therefore taken on file on the endorsement made that no delay application is necessary as per the Writ Petition No.03/2020 the delay does not arise. However being a question of law this commission decided to discuss as a preliminary issue. Further, by purchase of unapproved flat whether the complainant by the said transaction becomes a consumer itself is a question to be decided.  Hence, this point answered against the complainant.

Point No.2:

It is complainant’s allegations that the opposite parties including the Bankers hand in glow had jointly cheated him in purchasing an unapproved flat which value got depreciated due to non regularization. As we have held above that the complaint is hit by limitation and also when reliefs has been claimed jointly against the Builders and Bankers the complaint could not be heard before this commission as criteria of cheating was alleged against all opposite parties which could not be decided by this Consumer Commission. Thus this point is answered accordingly holding that the issue related to deficiency in service was left open to be decided by a competent Forum and we restrain ourselves from discussing the merits of the complaint.

Point No.3:-

In view of the above said findings the complainant is not entitled to any relief from the opposite parties.  Thus we answer the point accordingly.

In the result the complaint is dismissed.  No order as to cost. 

 Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 28th day of February 2023.

    Sd/-                                                                                                                    Sd/-

MEMBER-II                                                                                                     PRESIDENT

 

 

List of document filed by the complainant:-

 

Ex.A1 ............... Advertisement of the opposite parties. Xerox

Ex.A2 17.06.2014 Planning permission. Xerox

Ex.A3 17.06.2014 Building permission. Xerox

Ex.A4 17.06.2014 Plan approval. Xerox

Ex.A5 .............. Floor plan. Xerox

Ex.A6 15.07.2015 Apartment cost detail. Xerox

Ex.A7 ................ List of documents required by the 4th opposite party for process the loan. Xerox

Ex.A8 10.10.2015 Email of the 4th opposite party. Xerox

Ex.A9 11.11.2015 No-objection letter of the 1st opposite party. Xerox

Ex.A10 14.11.2015 Demand letter for processing fees. Xerox

Ex.A11 27.11.2015 Sale Deed of the complainants. Xerox

Ex.A12 27.11.2015 Construction Agreement. Xerox

Ex.A13 27.11.2015 Memorandum of deposit of Title Deeds. Xerox

Ex.A14 23.05.2016 Encumbrance Certificate. Xerox

Ex.A15 04.01.2018 Letter of the complainants. Xerox

Ex.A16 ................ Acknowledgement card. Xerox

Ex.A17 ............... Returned postal covers. Xerox

Ex.A18 22.02.2018 Legal notice issued by the complainants. Xerox

Ex.A19 ............... Returned postal covers. Xerox

Ex.A20 25.09.2018 Legal notice issued by the complainants. Xerox

Ex.A21 ................ Acknowledgement card. Xerox

Ex.A22 ................ Returned postal covers. Xerox

Ex.A23 25.10.2018 Valuation Report. Xerox

 

List of documents filed by the opposite parties:-

 

 Nil

 

    Sd/-                                                                                                                 Sd/-

MEMBER-II                                                                                                   PRESIDENT