KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
VAZHUTHACAUD, THIRUVANANTHAPURAM
APPEAL No. 699/2018
JUDGMENT DATED:11/12/2023
(Appeal filed against the Order in C.C. No. 227/2017 of DCDRC, Ernakulam )
PRESENT:
HON’BLE JUSTICE SRI. K. SURENDRA MOHAN : PRESIDENT
SRI. RADHAKRISHNAN K.R. : MEMBER
APPELLANT:
Sri. Raghu Ravindran, S/o . Ravindran, Apartment No. 4C,
Architham, Nucleus Rhyme, Edappally North, Kunnumpuram,
Cochin- 682 024
( Now residing at PVS Iris Flats, Desom, Aluva 683102)
(By Adv. A. Jayasankar )
Vs.
RESPONDENTS:
- M/s. Nucleus Premium Properties Private Limited, Registered
Office at 34/239 C, Near Maria Park, Palarivattom, Edappally P.O,
Ernakulam-m 682 024 represented by its Managing Director,
Nishad N.P, S/o Muhammed Ali, NellayaPuthanPeedikakkal
House, Thazhekkode West P.O, Malappuram- 679 352.
- Sri. Nishad N.P, S/o Muhammed Ali, NellayaPuthanPeedikakkal House, Thazhekkode West P.O, Malappuram- 679 352.
( For R1 and R2 By Adv. Philip T. Varghese )
- M/s. Smart Villas Private Limited, Registered office at Room No. 4, Sahari Building, Vazhappilly, Mudavoor P.O, Ernakulam- 686 691,
Represented by its Director, Sri. M. M. Abdul Karim.
- Sri. M. M. Abdul Karim, S/o Muhammed, Vazhachalil House,
Cheruvattoor P.O, Ernakulam- 686 691.
JUDGMENT
HON’BLE JUSTICE SRI. K. SURENDRA MOHAN: PRESIDENT
This is an appeal filed by the complainant in CC.No. 227/2017 of the Consumer Disputes Redressal Forum, Ernakulam ( District Forum for short ). As per an order dated 26-04-2018 the complaint filed by the appellant has been dismissed finding that it was filed after the period of limitation. The complaint was filed in the following status for the sake of convenience the parties shall be referred to hereinaccording to their status before the District Forum.
2. The opposite parties are builders. Through the agents, they had approached the complainant for the sale of a residential apartment which forms a part of an 8 storied residential complex by name “ Nucleus Rhyme ” . The offer made by the opposite parties included facilities like car parking area, stair case, corridors, club house, septic tank, health club and common areas. The complainant was made to understand that the complex could be constructed on a plot of land , 16.14 cents in a area situated in survey Nos. 32/4-1 & 32/4-2 of Edappally north village. On payment of Rs. 32,41,000/-, the opposite parties agreed to transfer the ownership of said schedule apartment having a super built up area of 987 square feet with 1/24th of indivisible share in the plot of land. An amount of Rs. 2 lakhs out of the total sale amount was for the construction of common amenities. Based on the above terms, an agreement of sale was entered into between the complainant and opposite parties on 07-01-2013.
3. Thereafter, on 29-09-2014 the ownership of residential apartment No. 4C in the residential building , “ Nucleus Rhyme ” was transferred to the complainant by the opposite parties. But, they did not provide the common facilities like car parking area, Club house or health club. Though the complainant expected the said facilities to be provided subsequently, they did not do so.
4. In the above circumstances, the complainant approached the District Forum by filing CC.227/2017 seeking redressal of the above grievances. As per the order appealed against, the complaint has been dismissed by the District Forum on the ground that it was barred by limitation.
5. According to the complainant, the omission of the opposite parties in not providing the common amenities as agreed in the sale deed amounted to in continuing cause of action. Therefore, the District Forum seriously erred in dismissing the complaint. Therefore the complainant seeks interference with the order appealed against.
6. We heard the counsel appearing for the parties. We have also perused the records of the case called for and produced before the District Forum . A perusal of the complaint reveals that the case put forward by the complainant was that in violation of the agreement entered into between the parties, the common amenities offered , had not been provided by the builder. It is certainly true that the complainant was aware of deficiency immediately after the possession of the residential apartment was given to him. However, since the amenities were necessary and essential for a comfortable life in the residential complex built by the opposite parties, the said omission of not providing them was continuing deficiency that was continuing to affect the peaceful life of the complainant in the apartment complex. Therefore, the contention that it constituted a continuing cause of action cannot be brushed aside as unsustainable. We are told by the counsel for the appellant that the said amenities have not been provided by the opposite parties even now. In the above factual scenario we find that the District Commission went wrong in dismissing the complaint as barred by limitation. Since the complaint of the appellant constitute a continuing cause of action, it is only appropriate that the District Forum considers the complaint on the merits, after providing sufficient opportunity to the parties to adduce evidence in support of their contentions.
In the result this appeal is allowed and the order dated 26-04-2018 of the Consumer Disputes Redressal Forum, Ernakulam is set aside . The District Forum shall take up the complaint in CC. 227/2017 afresh and shall dispose of the same on merits after affording an opportunity to the parties to adduce evidence in support of their respective contentions. Considering the fact that the case was filed in
the year 2017, an effort shall be made for the disposal of the complaint on an early date.
JUSTICE K. SURENDRA MOHAN : PRESIDENT
RADHAKRISHNAN K.R. : MEMBER
