For Complainant : Advocate Smt. Jayashri Kulkarni For Opponents : Advocate Smt. Surekha P. Kinkar ********************************************************************* Per : MEMBER, Smt. Sujata Patankar //JUDGMENT// [1] The facts giving rise to the complaint briefly stated are as follows :- It is the case of the Complainant that the owners of the property had entrusted the work of development to Karina Constructions which have assigned the right of development to Kundan Nahar Associates, the Opponent herein by agreement dtd.26/5/2005. Accordingly, the Complainant and the Opponent entered into registered agreement dtd.5/5/2007. As para “F” of the said agreement, Karina Constructions entered into MOU with the Complainant dtd.9/5/2005. It is further stated that it was mutually agreed in between Karina Constructions and the Complainant that the Complainant will be allotted one ownership basis flat bearing No.3 and 4 on stilt floor of the new building which is to be constructed upon the property for agreed consideration of Rs.6,55,300/-. Out of which, the Complainant paid Rs.98,300/- immediately and the remaining amount of Rs.5,57,000/- would be at the time of completion of work and possession of the new flat. It is further contended that as per Para No. “H” of the agreement, it was agreed that the Opponent will provide the alternative accommodation to the Complainant till the completion of the proposed building. However according to the Complainant, Opponent did not provide the alternative accommodation to the Complainant. It is also further stated that as the Opponent gave permission to one of the painter, who damaged the flat, hence too much loss was caused by the Opponent to the flat of the Complainant. It is further contended by the Complainant that on 12/05/2007, the Opponent demanded the balance amount of the consideration by giving false information that the said flat is completed and also threatened the Complainant, if the Complainant failed to give the said amount then the Opponent will charged the 18% interest. Hence the Complainant gave the total amount to the Opponent and took possession from the Opponent . But there are some shortcoming in the said flat which are : There are no electric connection as such meter is in the name of the Complainant. No provision of the glasses to the windows thereof. There is no coloring internal and external. There is heavy leakage of water in the hall and bedrooms giving by through dwelling thereof. Till society is not formed. The said flat is used by the painter hence there are spots at different patches to the flooring of the bedrooms such colored spot cleaned despite of the use of the acid. It is further stated that the Complainant sent the legal notice to the Opponent and the Opponent sent the false reply of such notice and hence the complaint is filed and demanded the following particulars of claim. Rs.24,000/- The rent of the alternative accommodation. Rs.2,00,000/- For the mental agony. Rs.5,00,000/- For the deficiency in service and defect in the construction. ------------------ Rs.7,24,000/- Total ------------------ Thus according to the Complainant, the Opponent failed to render the proper service to the Complainant. The Complainant many times asked to comply the demands but the Opponent avoided the matter which cause many losses to the Complainant. On all these grounds as stated above and as are mentioned detail in the complaint application, the Complainant has prayed as follows :- Order may be passed against the Opponent to remove the defects stated in para No. 5 of the said complaint. And also to pay the compensation of Rs.7,24,000/-. To pay Rs.5,000/- as the cost of the complaint to the Complainant. Any other just and proper order may be passed. The complaint itself is supported with the affidavit of the Complainant dtd.29/4/2009. The Complainant has also filed (a) to (l) documents alongwith the complaint application, comprising of letters, demand letter, mark statement letter to Builder, medical reports, FIR, receipts, complaint letter, notice demand letter, agreement and other documents, photographs etc.. [2] In pursuance of the notice of appearance issued by this Forum, the Opponent appeared and filed its written statement and has stated that the Complainant has entered in the flat without the consent of this Opponent on 5/6/2008 and started unauthorized use of the said flat. Immediately thereafter the Opponent has requested the Complainant that she cannot use the flat before occupancy certificate is issued by Pune Municipal Corporation and she has to execute possession receipt to complete legal formalities. According to the Opponent, execution of possession receipt is important for fixing the liability of the Complainant to pay property tax, maintenance charges and risk in the flat. It is further stated that the Complainant took adamant approach that she is not required to execute possession receipt and she will not execute the same. As the Complainant refused to execute the possession receipt, the Opponent has not started water supply and electricity supply to the flat till the execution of possession receipt, eventhough the same can be provided immediately on execution of possession receipt. It is also further submitted by the Opponent that she took possession of the flat when the flat was not ready for the possession and minor finishing work was still pending and the Opponent was required to complete the finishing work after she took the possession. It is admitted by the Opponent that the Opponent has acquired right to develop land bearing City Survey No.3463 to 3487 from its owners and Carina Constructions. It is also admitted by the Opponent that on 9/5/2005, Memorandum Of Understanding was executed between the Complainant and Carina Constructions. It is also further stated that as per the said Memorandum Of Understanding Carina Constructions have agreed to allot flat No. 3 and 4 on stilt floor adm. about 628 sq.ft. on ownership basis to the Complainant for total consideration of Rs.5,80,300/-. Carina Constructions have also agreed to provide tenant purchaser alternate accommodation from date of handing over possession of the tenanted premises till the possession of new premises is given to the Complainant. The Opponent further submits that registered agreement to sell in respect of flat No.3 and 4 on stilt floor of the new building is executed between the Complainant and the Opponent on 5/5/2007. It is the contention of the Opponent that total price of the said flat is fixed at Rs.6,55,300/-, out of which, Rs. 98,300/- was paid at the time of agreement and balance amount of Rs.5,57,000/- was to be paid in installments step by step of construction work, as per the detail table given the written statement. According to the Opponent, the Complainant has not paid the installments eventhough the said amount was demanded. The Opponent further submits that the Complainant has paid Rs.5,60,000/- on 14/5/2008. Completion Certificate of the said flat was issued by Corporation on 5/9/2008 as per Completion Certificate No. Ba.ni/Aundh/08/64. According to the Opponent as per clause No.1.9 of the agreement, the Opponent has provided alternate premises to the tenant purchaser which was situated in Pimple Gurav, Pune – 411 027. It is also further submitted that the Complainants have acquired the said alternate accommodation and started occupying the same. It is also further contended that the Complainant has occupied the said alternate accommodation for 9 months and thereafter without consent of the Opponent, they have acquired alternate accommodation at Sukhsagarnagar, Bibvewadi, Pune. Therefore the Opponent is not liable to pay the rent of the alternate accommodation at the rate of Rs.2,000/- per month. The Opponent also further submits that it is mentioned in the agreement , the Complainant has received possession of the alternate accommodation and therefore, the allegations of the Complainant that no alternate accommodation is provided to the Complainant is false. According to the Opponent, one of the partner of the Opponent viz. Mr. Ashish Jain is partner of another firm viz. Kundan Builders. The firm Kundan Builders has purchased alternate accommodation on ownership basis from M/s. Samrath Constructions. Therefore the said alternate accommodation was provided to the Complainant and she has acquired the said alternate accommodation without any objections. Therefore, the Opponent is not entitled to pay Rs.24,000/- to the Complainant towards rent of alternate accommodation. As per the agreement, possession of the said flat was to be given within 24 months from 5/5/2007 as stated in para 6 of the agreement. Thus possession was to be given on or before 4/5/2009. It is denied by the Opponent that the Opponent gave permission to one of the painter to reside in the flat and family members of the painter in the said flat. It is also further stated that as per clause No. 1.6, this Opponent is entitled to ask the interest @24% on the delayed installment for delayed period. According to the Opponent, it is false to say that threats were given by this Opponent. It is also further contended that some minor work was still pending when the Complainant took possession and therefore the said minor work was completed after 5/6/2008. It is also submitted that glasses to the windows were affixed after 5/6/2008. As also, PMC water supply is there to the building. In each flat, 2 water connections are provided. One water connection is provided from water tank in which borewell water and PMC water is stored and other connection is provided for drinking water from the tank in which only PMC water is stored. There is regular supply of drinking water from PMC to the entire building. It is also the contentions of the Opponent that the entire building is extremely painted. It is also further contended that the Complainant is not allowing the Opponent to enter into the premises to find out the exact nature of leakage and to carry out the repair works. It is also specifically contended that the Deed Of Declaration is executed on 31/3/2009 and maintenance of the building is handed over to the Association of Apartment Owners. It is also the contention of the Opponent that as per the instructions of the Complainant, location of kitchen otta was changed and because of that instead of brick partition wall in the hall and kitchen cannot be done in bricks because there was no beam below the partition wall and therefore wooden partition was provided. The Opponent also further submitted that if there are any repairs to the said flat they are ready to carry out the same, provided the Complainant is ready to co-operate. The Opponent further contended that they are not liable to pay Rs.24,000/- towards the rent of alternate accommodation and sum of Rs.2,00,000/- for mental agony and Rs.5,00,000/- for deficiency in service and defects in the constructions as claimed in para 4 of the complaint. According to the Opponent, only because of non co-operation and unauthorized act of the Complainant to take the possession before the finishing work in the flat was completed, the Complainant has filed the aforesaid complaint and the Complainant is solely responsible for the grievances which are raised in the complaint. On all these grounds and as stated specifically in the written statement, the Opponent has prayed that the complaint may be dismissed. The written statement is also supported with affidavit. Also, the Opponent has filed list of documents, comprising, photocopy of Deed of Declaration, MSEDCL bill for payment, notice cum agenda, Minutes of First general meeting, letter dtd.24/8/2009, affidavit of Manish Bharadwaj, etc.. [3] In addition to the written statement, the Opponent has also filed additional reply. The Complainant filed rejoinder alongwith affidavit. We have gone through the contents of the rejoinder-affidavit. The Complainant as well as the Opponent has filed written notes of arguments. The Opponent has also filed additional written notes of arguments as also authority. Advocate for both the parties have also advanced their oral submissions before the Forum. We have gone through the entire proceedings, pleadings, evidence, arguments produced on the record in the complaint proceedings. [4] On perusal of the entire proceedings, the following points arouse for our consideration. Points Answers 1. Whether the Opponent has rendered deficiency in service to the Complainant? … Yes 2. What order ? … As per final order. REASONS :- [5] By virtue of agreement produced on the record (Page 55), it is crystal clear that the Complainant has entered into an agreement with the Opponent dtd. 5/5/2007 for purchase of flat bearing No.3 and 4 on stilt floor of new building which is constructed upon the property bearing S.No.18B+79 bearing corresponding CTS No. 3463 and 3487 situated at village Bopodi, Tal Pune City, District Pune as mentioned in para [A] & [F] of the Articles Of Agreement. Moreover this fact is also not disputed by the Opponent in their written say and affidavit. As well as, it is also not disputed by the Opponent that the Complainant has paid the entire consideration of the flat to the Opponent. It is also evident from perusal of the receipt bearing No.182 produced at page No. 89 that the Complainant has paid the amount of Rs.98,300/- to the Opponent. As also, it is clear that the Complainant has also paid the amount of Rs. 5,60,000/- by way of receipt bearing No. 196 produced at page No. 11 out of the total consideration of the flat amounting to Rs.6,55,300/-. In addition to that it is also to be more particularly mentioned that by Memorandum Of Understanding dtd. 9/5/2005 entered into between the Complainant and M/s. Carina Construction and Mr. Agamastan Mohammed Hussain Vallimohammed and others, who are the owners of the property, the Complainant is a tenant before development of the property and therefore, being a tenant, the Complainant is very much entitled for the reliefs as per the terms and conditions of the agreement. Therefore in our opinion, the Complainant is a “consumer” of the Opponent. Now the point remained for our consideration is whether the Opponent has rendered deficiency in service to the Complainant ? [6] On perusal of the documents filed by both the parties, it is the case of the Complainant that the Complainant is demanding rectification in the defective work of the flat as well as formation of the society and other consequential reliefs such as Rs.24,000/- for the rent of the alternative accommodation, Rs.2,00,000/- for the mental agony and Rs.5,00,000/- for the deficiency in service, total amounting to Rs.7,24,000/-. As against this, it is the case of the Opponent that the Complainant has forcefully taken the possession of the disputed flat, hence the work in the disputed flat remained incomplete as stated in the complaint application. It is also the case of the Opponent that the Complainant is not allowing to enter the Opponent into the disputed premises for removing the defects. [7] Under these circumstances, the Complainant filed the application for appointment of Court Commissioner on which the Opponent has also filed their say. Hon’ble Forum passed order on 30/12/2010 and allowed the application. The record and proceedings of the complaint application also reveals that once again on 14/2/2011, the Complainant filed one more application for giving directions to the Court Commissioner for additional work to be carried out, in addition to order dtd.30/12/2010. Hon’ble Forum also allowed this application and passed separate order on 24/3/2011. Accordingly, as per the directions of this Forum, Court Commissioner Mr. Jaydeep Yargop visited the disputed premises and filed their commission report alongwith photographs. After scrutiny of the Court Commissioner report and photographs, it is therein mentioned as follows :- Proper electric connection was provided in the flats. Toilet windows were not provided with glass. PMC water connection was provided in the flat. Borewell water connection was provided in the Bathrooms. Borewell water connection was not provided in the kitchen. The flat was painted properly both internally and externally. There was leakage of water from the toilet of the flat to the parking below. The W/C and Nhani trap connection was not properly done. The four and three drainage lines were connected together which is improper. The duct below the inspected flat was totally chocked with drainage water. There were signs of water leakage below the kitchen otta. The tiles above the kitchen sink were not properly fitted. Floor tiles of the flat were fairly clean. No major patches were observed on the floor tiles of the flat. There were signs of water leakages in the bedroom & living room from the flat above. This had caused damage to the plaster of the ceiling at some places in the bedroom and living room. [8] Taking into consideration all the aforesaid facts and circumstances of the case, relying on the prayers of the complaint application, say of the Opponent, report of the Court Commissioner and considering the terms and conditions of the agreement, in our opinion, the Opponent has left the work incomplete of the disputed premises as well as there is defects in construction work, which is confirmed by the Court Commissioner in his report. Even though accepting the entire consideration of the flat from the Complainant the Opponent has failed to comply as per the terms and conditions of the agreement. Therefore we opined that the Opponent is bound to rectify the defects in the disputed premises only to the extent of terms and conditions of the agreement and Court Commissioner report. [9] It is pertinent to note that it is the contention of the Opponent that the Complainant has taken the forceful possession of the disputed flat. However after perusal of the documents filed by the Complainant, the letter dtd.12/5/2007 sent by the Opponent to the Complainant in which it is stated : “ as per the agreement made between us for the above mentioned flat you are required to pay amount of Rs.5,57,000/- upon the completion of the total work. Hence you are requested to sent the Cheque/Demand Draft should be drawn in favour of Kundan & Nahar Associates, payable at Pune, Vijaya Bank, Khadki Branch, A/c No. 738. If the above payment is not received by us within 10 days from date of this demand letter you will be charged an additional 18% interest on the above mentioned amount due”. and thereafter, the Complainant paid the amount of Rs.5,60,000/- on 14/5/2008 to the Opponent. As per contentions of the written statement of the Opponent, the Complainant has entered in the flat on 5/6/2008. As per the agreement, the Complainant paid the consideration amount to the Opponent as per demand letter dtd.12/5/2007 issued by the Opponent. It means that the Opponent had handed over the possession of the disputed flat to the Complainant after receiving entire consideration. Hence the contention of the Opponent about the forceful possession of the flat by the Complainant is unjustifiable. [10] As per the Schedule II A Description of Tenanted Premises & Schedule II B Description of Alternate Premises of the Articles of the Agreement dtd. 5/5/2007, the Complainant is entitled to receive the rent from the Opponent for the period from development of the property till possession of the flat. On perusal of the documents, in our opinion, the agreement entered into between the Complainant and the Opponent dtd. 5/5/2007 and the possession of the flat was handed over to the Complainant on 5/6/2008, therefore, according to us, the Complainant is entitled to recover the amount of Rs.13,000/- (per month Rs.1,000/- from 5/5/2007 to 5/6/2008 for 13 months) from the Opponent towards rent as stated in the agreement. The Complainant has annexed list of documents (Exh. 13) comprising, Leave and Licence Agreement dt. 8/6/2006 in between the Complainant and one Mr,. Aslam Mahamad Khan for the period from 8/6/2006 to 7/5/2007 for payment of rent amount of Rs.1,000/- per month. In addition to that the Complainant has also filed receipts issued by Vishalshree Sahakari Griharachana Sanstha Maryadit dtd. 27/6/2006, 9/10/2006 and 2/4/2007, amounting to Rs. 750/-, Rs.750/- and Rs.1,750/- respectively, total amounting to Rs.3,250/-. Against this contention, the Opponent in their additional reply has only stated that the Complainant is practicing false and contrary statements and the Complainant was provided with alternative accommodation. In this context, in our opinion, the agreement entered into between the Complainant and the Opponent came into existence on .5/5/2007 and the Complainant has produced the Leave & Licence Agreement from 8/6/2006 to 7/5/2007. The date of agreement shows that the leave and licence agreement came into existence before the agreement dtd. 5/5/2007. Hence this leave and licence agreement cannot be taken into consideration. The Opponent filed list of documents, comprising the agreement in between M/s. Samrat Constructions And M/s. Kundan Builders. On perusal of this document, it shows that the Opponent purchased the flat from Samrat Constructions, by which it can not be proved that the Opponent has provided alternative accommodation to the Complainant. Hence the contention of the Opponent is not acceptable. As per above discussions, the Complainant proved that there is deficiency in service on the part of the Opponent. [11] The Complainant filed purshis dtd.30/12/2010 in which it is stated that meanwhile the Opponent has provided electric meter and PMC water supply to the Complainant. Therefore, the demands in the prayer clause of the complaint about PMC water connection and electric meter would not be considered. As also in the context of formation of the Society, the Opponent has filed Deed Of Declaration on the record. Hence the prayer regarding the formation of the society is not acceptable. The prayer of the Complainant about the internal and external coloring is not acceptable because of Court Commissioner’s report show that the flat was painted properly both internally and externally. The flat is used by the painter hence there are spots at different patches to the flooring of the bedrooms such colored spot cleaned despite of the use of the acid, against this prayer of the Complainant, the Court Commissioner report shows that Floor tiles of the flat were fairly clean. No major patches were observed on the floor tiles of the flat and hence this prayer is not acceptable. [12] The Opponent filed one application dtd.1/6/2011 and prayed that Court Commissioner may be appointed to supervise the repairing work which is to be carried out as per the Commission report. Now we are directing the Opponent to carry out the work of rectification to be done in the presence of the Court Commissioner and the fees would be decided by the Court Commissioner, which would be paid by the Opponent. [13] The Complainant is a widow woman. Her one son is deaf and dumb. She has no any other financial support. In this situation, the Complainant being a consumer, filed this complaint against the Opponent for deficiency in service. Due to deficiency in service on the part of the Opponent which is also verified by the Court Commissioner in his report, the Complainant sustained a cost for court commissioner report amounting to Rs.4,000/- and also cost of the proceedings. Moreover, because of the incomplete work made by the Opponent, the Complainant has to suffer inconvenience and mental agony which needs to be compensated by the Opponent. In addition to that whenever the Opponent entered into the Complainant’s flat for removing the defective work, the Opponent made damage to the property of the Complainant and therefore, the Complainant filed an application dtd.14/2/2011. In this respect, the Opponent themselves have filed the affidavit of Mr. Manish Bharadwaj, in which it is stated that the Opponent is ready and willing to carry out the remaining incomplete work in the said flat as also same fact is averred in the written statement also. In the present case, it is clear that there is dispute of incomplete work. Therefore, for verification of these deficiencies, the Court Commissioner has been appointed and hence this report would be played a significant role to adjudicate the deficiencies in the present case and in our opinion, this should be relied and acted upon. Relying on the Court Commissioner report, we are directing the Opponent to carry out certain work Moreover, the Opponent did not file any say to the Court Commissioner report and did not challenge the statements made by the Court Commissioner. Hence the Complainant is entitled to recover amount of Rs.5,000/- by way of cost of the proceedings and Rs.30,000/- by way of compensation from the Opponent. [14] After going through the proceedings, more particularly, complaint application, the Complainant has prayed certain reliefs in para (5) of the complaint application and has prayed in the prayer that Order may be passed against the Opponent to remove the defects stated in the para No. 4 of the said complaint. In view of this, today, the Complainant has filed application alongwith affidavit praying for allowing to make correction in the complaint application. As there is no change in nature of the complaint application, in the interest of justice the Complainant is allowed to make correction in the prayer clause of the complaint application. As stated above, sum-up with the aforesaid discussions, we proceed to pass the following order :- // ORDER // (1) The complaint is partly allowed. (2) The Opponent is directed to rectify the defects in the flat of the Complainant within a period of 30 days from the date of receipt of the order in the presence of the Court Commissioner as follows :- (i) To provide Toilet windows with glass. (ii)To provide Borewell water connection in the kitchen (iii) To remove the leakage of water from the toilet of the flat to the parking below. To make proper rectification in the W/C and Nhani trap connection. To connect the four and three drainage lines properly. (iv) To clean and remove choke-up of drainage water in the duct below the Complainant’s flat . (v) To remove the water leakage below the kitchen otta and the tiles above the kitchen sink are to be properly fixed. (vi) To remove water leakages in the bedroom & living room from the flat above. As also, the plaster of ceiling in the bed room and living room to be done properly. (3) The Opponent is directed to pay to the Complainant sum of Rs.13,000/- by way of rent for alternate accommodation within a period of 30 days from the date of receipt of the judgment, failing which, the Opponent would be liable to pay 9% interest from the date of judgment till realization thereof. (4) The Opponent is directed to pay Rs.30,000/- towards compensation and Rs.5,000/- towards cost of the proceeding to the Opponent, within a period of 30 days from the date of receipt of the order. (5) Certified copies of this order be supplied to both the parties free of costs. (Smt. Sujata Patankar) (Smt. Pranali Sawant) MEMEBR PRESIDE NT ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PUNE. Place : Pune Date : 26/08/2011
| | [ Smt. Sujata Patankar] MEMBER[ Smt. Pranali Sawant] PRESIDENT | | 
