ADDITIONAL PUNE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AT PUNE
(BEFORE :- PRESIDENT :- Smt. Pranali Sawant )
MEMBER :- Smt. Sujata Patankar )
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Complaint No. : APDF/243/2005
Date of filing :- 03/07/2000
Date of decision :- 20/12/ 2011
Mr. Vibhakar Rangnath Ramtirthakar, .. )
R/at : “Sahavas”, 669, Green Acre Society, .. )
Bibvewadi, Pune – 411 037. .. )… COMPLAINANT
: versus:
M/s. Grahanirman, .. )
Mr. Vivek Balchandra Joshi Since Deceased .. )
Through Legal heir :- .. )
Smt. Dhirottama Vivek Joshi, .. )
Bhagyanagari No.1, Behind Ravi Kiran Hall, .. )
Opp. Chintamani Nagar, Bibvewadi, .. )
Pune – 411 037. .. )… OPPONENT
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For Complainant : Self
For Opponent : Advocate Shri. Pashankar
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Per : Smt. Sujata Patankar, Member
//JUDGMENT//
[1] The present complaint has been filed before the Pune District Consumer Disputes Rederssal Forum bearing complaint No. PDF/282/2000. By order of the Hon’ble State Consumer Disputes Redressal Commission, Mumbai, the present complaint has been transferred from Pune District Consumer Disputes Redressal Forum to Addiional Pune District Consumer Disputes Redressal Forum numbered as complaint No. APDF/243/2005. The present matter was allowed ex-parte by this Forum on 29/11/2008. Aggrieved with this order, the Opponent has filed the appeal bearing No.806/2009 before the Hon’ble State Consumer Disputes Redressal Commission, Maharashtra State, Mumbai, which was decided on 8/7/2010 and the matter was remanded back alongwith a direction to the Appellant/Opponent to file its written version if any on the date of appearance. Thereafter, both the parties be given opportunity to adduce their evidence as per Section 13 (4) of Consumer Protection Act, 1986 and the matter be heard and dispute be settled in accordance with the law. Hence the matter is decided in the year 2011.
[2] The brief facts of the case is as follows:-
The Opponent is the Promoter and has developed the scheme “Ownership Scheme” on the property bearing S.No. 669/1C/2 and S.No. 669/1C/3, Bibvewadi, Pune. It is the contention of the Complainant that the Applicant had purchased the said property alongwith 11 other persons and had 1/12 undivided share. The Applicant alongwith the other persons formed society and accordingly became its members holding share therein. The Complainant had executed a release deed in favour of the said society and released the said property. Accordingly the members in the said society prepared a layout plan and divided the said property into plots. The layout came to be submitted to the local authority and sanction was obtained. The members came together and decided to effect joint development and as such the plots so made came to be amalgamated and sanction was obtained and accordingly the plot for Bunglow A-9 came to be allotted to the Applicant. Similarly the allotment were made in favour of other members. In consideration of being granted development rights for the remainder portion of the property the terms came to be agreed and accordingly development agreement dated 14/11/93 came to be executed in favour of the Opponent to which all the members of the society joined including the Applicant abovenamed. It is further submitted that in the terms of the agreement the Opponent was to pay the consideration partly in monetary form and partly in construction form. The monetary consideration was payable to some members including the Applicant. It is also further submitted that as agreed the Opponent was to pay a sum of Rs.16,400/- as cash consideration and was to construct a bunglow for the Applicant. The amenities and specification for the said bunglow also came to be agreed and which appeared in the fifth schedule given in the agreement. It was agreed that the Opponent would deliver the possession before 30/6/1995 and in default would pay Rs.4,000/- per month as liquidated damages for each delayed month. It is submitted that in terms as agreed the Opponent has failed to do the following :-
(a) to pay the Applicant the amount of Rs.16,400/- being monetary consideration.
(b) to complete the construction of the bunglow on or before 30/6/95, and therefore the Applicant suffered undue hardship and loss.
(c) to provide the agreed amenities and facilities. The amenities and facilities are not proper and are defective and need repairs/replacements.
(d) The construction carried out by the Opponent is not of good quality and suffers from defects and deficiencies.
[3] Thus according to the Complainant, by making the Applicant enter into an agreement and failing to pay the consideration of Rs.16,400/- the Applicant has adopted unfair trade practice, as such the Opponent is liable to pay the amount of Rs.16,400/- to the Applicant. It is also the contention of the Complainant that the Opponent is liable to pay the Applicant Rs.4,000/- per month as liquidated damages from 30/6/95 till the completion of the construction. The construction came to be completed with the delay of 30 months and as such the Applicant is entitled to claim Rs.1,20,000/- as damages for delay in construction. The notice was sent to the Opponent by the Complainant through Advocate S.P. Anand on 6/10/99, which was received by the Opponent. It is the contention of the Complainant that the overhead water tank was leaking and the Opponent failed to replace the same.
[4] Thus on all these grounds and as stated in the complaint application, the Complainant has prayed that :
(a) The Opponent be directed to pay to the Applicant the amount of Rs.16,400/- forthwith.
(b) The Opponent be directed to pay to the Applicant the damages of Rs.1,20,000/- for delay in delivery of possession of the premises.
(c) The Opponent be directed to pay interest at the market rate of 21% p.a. or at such rate as this Court may determine on Rs.16,400/- + 1,20,000/-.
(d) The Opponent be directed to provide, repair or replace the amenities and facilities mentioned in the said list at Annexture A.
(e) The Opponent be directed to pay to the Applicant the amount of Rs.25,000/- as compensation for causing mental torture, pain, agony and suffering to the Applicant.
(f) The cost of this application be granted to the Applicant from the Opponent.
[5] There is no affidavit alongwith the complaint application on the record. The Complainant has also filed list of documents, comprising agreement, list, notice and valuation report (Xerox copies).
[6] The Opponent filed written version and has denied the contents of the complaint application. It is the contention of the Opponent that the present complaint is barred by limitation and also not maintainable against the Opponent as the present Opponent is not promoter as there is no privity of contract between the Applicant on one hand and the present Opponent on the other hand. The Applicant therefore cannot enforce the contract against the present Opponent. Hence the complaint has to be dismissed forthwith. The Opponent submits that late Vivek Bhalchandra Joshi had developed the property bearing Survey No. 669/1C/2 and Survey No. 669/1C/3, Bibvewadi. It is true that the late Vivek Bhalchandra Joshi and the members of Green Acre Society, Bibvewadi entered into an agreement for development of the said property on 14/11/1993. The Opponent further also submits that this Opponent is not liable to pay Rs.16,400/- to the present Applicant, as the same is barred by Law Of Limitation the demand made by the Applicant is totally incorrect. It is not also denied that the Applicant suffered hardship and loss because of non completion of the construction before 30/6/1995. The Opponent was never served with any notice. The Opponent denied the deficiencies in service and also compensation demanded by Applicant. The Opponent prays that the application of the Applicant may dismissed with costs. The Opponent has filed affidavit in support of the written version.
[7] After filing of the written version by the Opponent, the Complainant has filed affidavit dtd.25/4/2011. The Complainant has also filed 10 documents on 28/04/2011, comprising the letter dtd.1/8/1999 by Grahanirman to Mrs. N.M. Kambale, letter dtd.28/8/1999 by Mrs. N.M. Kambale to Grahanirman, letter dated 8/9/1999 by Mrs. N.M. Kambale to Grahanirman, letter dated 15/9/1999 by Grahanirman to Mrs. N.M. Kamble, order dated 6/8/1999 by Civil Judge Sr.Dn. in RCS 37/2004, Statement of expenses for the internal road of society, PDCC Bank Pass Book of the Green Acre Society, letter dtd. 28/6/1998 by Green Acre Society to Grahanirman, Circular dated 14/3/2000 by Green Acre Society to its members, Electrification estimate for electrical connection.
[8] Both the parties have filed their written notes of arguments. Taking into consideration, the complaint, documents and the written statement, affidavit, written notes of arguments of the Complainant and the Opponent, the following points arose for our consideration :
Points Answers
1) Whether the complaint is filed within the
period of limitation under the provisions
of Consumer Protection Act ? … Yes.
2) Whether the Complainant has proved that
the Opponent has rendered deficiency
in service regarding defects in construction? … No.
3) What order? … As per final order.
REASONS :-
[9] The Opponent has raised the issue in their written statement that the Complainant has not filed the present complaint application within the limitation period prescribed as per the provisions of the Consumer Protection Act. The Complainant filed the delay condonation application at the time of final hearing. The Opponent filed their say on the said application. Hon’ble Forum passed the order that this application would be decided at the time of final hearing of the present complaint application. The Complainant took the possession of the bunglow in the month of December – 1997. The Complainant sent legal notice through Advocate on 06/10/1999. The Opponent denied that the notice was received by them. The Complainant has filed list of documents on 23/9/2011, comprising RPAD slip and RPAD acknowledgment receipt. However the Complainant filed this complaint application on 3/7/2000 before this Forum. It means that the Complainant sent notice to the Opponent in the month of October 1999 and filed the present complaint application in the month of July 2000, therefore we opined that the Complainant has filed their complaint application within limitation prescribed under the provisions of Consumer Protection Act, 1986. Hence we answered the point No. 1 in the affirmative.
[10] On perusal of the complaint application and the documents filed by the Complainant, it reveals that the Complainant did not specifically mention whatever defects remained in construction at the time of possession. As per the contention of the Complainant, the possession was delivered by the Opponent in December-1997 and firstly the Complainant sent legal notice through Advocate on 6/10/1999 to the Opponent for defects in construction. In notice also, there is no specifications about the remaining defects in constructions by the Opponent. The Complainant has filed valuation report dtd.4/3/2000. In the valuation report it reveals that the Complainant sought relief for deficiency in service about the replacement of flooring, aluminium windows - three shutters, taps, bath shelf, bath corners and about repair work of chequard tiles – slope near gate, aluminium windows – no lipping, window granite and about society common road not done by the Opponent. In this respect in the written notes of arguments, the Complainant has stated that the possession was given in December 1997. The Complainant sent a notice to the Opponent through Advocate S.P. Anand on 6/10/1999 and has filed the present complaint application on 3/7/2000 before the Forum. The Complainant has filed Annexure – A ( Exh.4/8 ) for defects in work by the Opponent i.e. external walls, MS windows, skirting, wash basin, water leakage, loft, overhead water tank (broken), main gate, wiring (upto main cable), wiring compatible for 3 phase meter, drain pipe, window (chajja), colour tiles, stair case, wash basin tab, liquidated damage, main gate, compound wall, window chajjah, wiring, main door, electrical charge, external walls, stair case landing, internal walls, bath window Lowers. However the Valuer has not filed affidavit supporting to the valuation report. Moreover, when the Complainant came with the case that the defects remained in construction, it is the duty of the Complainant to prove the case of defective work by authentic documentary evidence and affidavit. But in this case, there is no affidavit of Valuer and also photographs are not filed on the record by the Complainant to prove his case which shows that the defects and deficiencies in construction by the Opponent from the date of possession. In support of the complaint, the Complainant filed one valuation report dtd.4/3/2000 by Mr. D.V. Divekar. As per the contention of the Complainant, the Complainant took the possession of the bunglow in December 1997. The valuation report made by valuer about the disputed property/bunglow on 4/3/2000. After perusal of the valuer report it reveals that the valuer himself inspected the property on 4/2/2000 for the purpose of assessing defects / pending works. It means that the Complainant took the possession of bunglow in the month of December-1997 and the valuation report by the valuer is in the month of March – 2000. At this juncture it is pertinent to note that the valuation report is made approximately after two years and two months from the date of the possession of the bunglow. However in this respect we opined that at the time of the possession only, the Complainant has to point out all these defects and deficiencies in the construction work and informed accordingly to the Opponent. In the present case, as mentioned above, the Complainant appointed valuer, who furnished his report on 4/3/2000. Except valuation report, there is no any documentary evidence produced on the record by the Complainant. Which shows that there is defect remained in construction of bunglow by the Opponent, which were in existence from the date of possession. The Valuer has not produced photographs on the record in support of the contentions. As also, no affidavit is filed by the valuer. Therefore we opined that the Complainant has not proved his case about the defects in construction. Hence there is no deficiency in service by the Opponent to the Complainant.
[11] The Complainant prayed in their prayer clause that the Opponent be directed to pay to the Applicant the amount of Rs.16,400/- with interest 21% p.a.. After perusal of the agreement,
Clause 8 Total Consideration :
A. Consideration In Cash And By construction :-
“i) The Promoter is to construct one Bunglow each of 1600 sq.ft. as builtup area, at his own costs, and also pay cash consideration to the members as mentioned hereunder i.e. Rs.16,400/-“.
As per the case ratio laid down in the 2008 III CPJ 48 S.C. the landowner consumer, builder service provider, dispute regarding deficiency in service in construction will be consumer dispute.
[12] The Complainant demanded Rs.16,400/- with interest from the Opponent. After perusal of the agreement, the Opponent agreed that the amount of Rs.16,400/- to be paid by the Opponent as a consideration to the Complainant. In this respect we opined that there is no any provision under the Consumer Protection Act, 1986 to recover the consideration amount from the promoter. Therefore the prayer of Complainant about amount of Rs. 16,400/- is improper and unjustifiable and hence liable to be rejected.
[13] Keeping in view the aforesaid observations the claim of the Complainant is liable to be rejected without any cogent evidence . Hence we pass the following order :-
// ORDER//
(1) The complaint stands dismissed.
(2) Parties to bear their own cost.
(3) Certified copies of this order be furnished to the
Complainant and the Opponents free of costs.
(Smt. Sujata Patankar) (Smt. Pranali Sawant)
MEMEBR PRESIDE NT
ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,PUNE.
Place : Pune
Date : 20/12/2011
