ORDER

BY SRI.H.R.SRINIVAS, PRESIDENT.

This is the Complaint filed by the Complainant U/S Section 35 of Consumer Protection Act 2019, against the Opposite Party (herein referred in short as O.P) alleging the deficiency in service in not handing over the flat in time and for damages at Rs.19,000/- per month from 01^st august 2014 till 30^th November 2021 along with interest at 12% p.a. and further Rs.4,00,000/- as damages for causing loss suffering mental agony and hardship and to direct OP to complete the flat in all respect and to hand over the same in a defect free condition and to collect the monthly maintenance only after handing over the flat and for other reliefs as the Commission deems fit.

2.      The brief facts of the complaint are that;

The complainant booked a flat on 30.03.2012 under the sale Agreement and Construction Agreement for a total consideration of Rs.39,64,474/- and paid Rs.1,00,000/- as token advance in respect of the purchase of the flat No.PH-A-14-202.  OP promised to hand over the flat to the complainant by 30^th April 2014.  When the complainant approached OP on the schedule date of delivery of the flat he did not get any positive response.  When the complainant started demanding that the flat to be handed over should be in good liable condition, OP went on giving false assurances. As on the date of filing of the complaint also, OP did not keep up to his words in handing over the possession of the flat. The project was in chambers the quality of workmanship was at the lowest level. The matter was brought to the notice of the higher authorities.

3.      He has paid all the installment except one installment of Rs.1,98,223/- which is to be paid after the work of flooring is over and possession is handed over.  Since OP did not complete the flat, he has withheld the payment of the amount.  He sent the emails to the group CEO, Senior Manager.  He received an email from OP confirming that OP has taken a decision to redo some work by engaging reputed consultants. Also assured to invite the complainant in respect of the two blocks after rectification work is completed.  He was never invited to inspect the blocks.  Inspite of assurance given by OP, the toilets in the flats not properly rectified and the work was incomplete.  Complainant visited the flat for about nine times on the invitation of OP and OP confirmed the defects identified by the complainant and the complaints in respect of the flats pointed out on the previous visit. When he visited the flat, the flat was never kept ready for inspection and there is negligence on the part of the administrative authority of OP.

4.      There is communication gap between OP and its office administration, the plumber, electrician the carpenters. Even many times the doors could not be opened with original keys due to bad quality of door locks installed.  Though the vice president was met and gave an assurance to rectify the concrete sealing, sanitary pipes in the toilet which were leaking due to bad workmanship and using low grade water proofing material and the concrete used was of inferior quality, the same was not rectified.  OP has repeatedly failed to fulfill the demands and to rectify the mistakes. It appears that OP has installed faulty lifts, STP plant and handed over the defective flats to the buyers and is collecting heavy maintenance charges.  OP has not bothered to rectify the defective workmanship.  He had to issue a legal notice to the OP and the same has been replied. Since there is deficiency in service on the part of OP, he prayed the Commission to allow the complaint and award compensation and the amount as prayed in the complaint.

5.      Upon the service of notice, OP appeared before the Commission and filed the version contending that the allegations made in the complaint are false, baseless, vexatious, liable to be dismissed and the claim made is false and unreasonable.  Complaint is also liable to be rejected on the ground that the director of the OP1 has been unwarrantedly made as a party to the proceedings.  It is liable to be dismissed for misjoinder of unnecessary party. No allegations have been made against the director of the company.

6.      After the agreement of sale and construction agreement, OP has been monitoring the construction and progress has been made in the project.  The complaint was also intimated several times to come and inspect the apartment. However he failed to do so. After repeated mails by OP1, complainant on 03.01.2017 came to the flat for inspection and made three observations to be rectified one Deep cleaning, plumbing fixtures to be checked, paint and grout to be done wherever required. After pointing out the defects, the same was rectified and the complainant was called for joint inspection on 18.03.2017 and after the inspection he has affixed his signature stating that all snags were resolved and no snags, which clearly goes to show that the complainant was fully satisfied as to the apartment.  Time and again complainant raised some or the other issues and the same were attended too.  Complainant in the habit of repeatedly and unnecessarily pointing out one or the other issues to delay the process of registration and obtaining possession. By signing the joint inspection report complainant was well aware of the fact that his apartment was in a liable condition and also assured that if the complainant points out minor issues the same would be rectified.  Complainant is in the habit of making unnecessary delay and trouble.  A joint inspection was held on 07.04.2017 and the complainant was informed by email that everything has been set right and the apartment was ready for registration and possession and he could come forwards to complete the process.  OP has kept ready the flat in the habitable condition and ready to handover the possession, whereas the complainant denied to take possession of the flat on trivial issues.

7.      It is further contended that complainant failed to make the last installment and as such he is liable to pay 2% interest on the balance amount as per the construction agreement. However complainant was informed that as a special case, keeping in view of the relationship it, waived the interest portion and requested complainant to come forward to get the flat registered by paying the balance sale consideration. Inspite of it, complainant failed to do so.  By denying each and every allegation made in the complaint, OP prayed the Commission to dismiss the complaint.

8.      In order to prove the case, both the parties filed their affidavit evidence and produced documents. Arguments Heard. The following points arise for our consideration:-

1) Whether the complainant has proved deficiency in service on the part of the Opposite Party?

2) Whether the complainant is entitled to the relief prayed for in the complaint?

9.     Our answers to the above points are:-

POINT NO.1:            In the Affirmative

POINT NO.2:            Partly in the affirmative.

                                For the following.

REASONS

10.   POINT No.1:-

   Perused the complaint, version, affidavit evidence and the documents produced by respective parties.  It is not in dispute that the complainant booked a flat PH-A-14-202 and entered into an Agreement of sale and construction agreement with OP.  As per the said agreement, OP was to deliver the flat by 1^st July 2014, extendable with grace period of two months. That means, by 1^st of September 2014, OP ought to have delivered the possession of the completed flat to the complainant.  

11.   On perusing the entire correspondences and the contentions of the version, it is found that even on 03.01.2017, and subsequently when the joint inspection was made, the flat was not at all complete and in a livable condition.  It is the bounden duty of the OP to complete the building as agreed in the agreement failing which to pay the amount of Rs.1,000/- pm., as compensation. 

12.   From the evidence and documents it becomes clear that by March 2017, the building was completed and in a livable condition, of course with some minor problems to be attended to.  OP has also undertaken to get the problems set right after handing over the completion certificate to the purchasers for a period of 12 months. 

13.   When this is taken into consideration, when OP has come forward to hand over the possession during March 2017, complainant ought to have taken the possession of the same. 

14.   In view of Catena of decisions rendered by the Hon’ble Supreme Court of India, and the National Consumer Disputes Redressal Commission, it is the bounden duty of the developer and builder to complete the construction of the flat and hand over the same as per the time line in the agreement, otherwise, OP has to compensate the complainant/purchaser.  In view of this, there is delay in completion of the building and also handing over the same. No documentary proof has been produced by OP to show before this Commission that it had completed the construction work of the flat and the flat was ready for occupation by 1^st September 2014.  In view of this we hold that there is deficiency in service and answer point No.1 in the affirmative.

15.   POINT NO.2

Complainant has sought damages of Rs.19,000/- pm., from 1^st August 2014 till 30^th November 2021 along with interest amounting to Rs.14,82,000/- and further Rs.4,00,000/- as damages for causing him sufferance both mental and physical.

16.   Complainant has failed to clarify as to how he is entitled for damages of Rs.19,000/- pm. He has not clarified as to whether he was paying rent in a rented house for all these days to claim the said amount and has not adduced any evidence to that effect in order to order OP to pay the same.

18.   As per the agreement entered into between the complainant and OP, OP is bound to pay Rs.1,000/- pm., to the complainant for the delayed period of handing over the possession of the flat.  In view of this from 1^st September 2014 till the OP made known and requested the complainant to take possession of the property i.e., on 18.03.2017, OP is bound to pay a sum of Rs.1,000/- pm to the complainant. Further act of OP in delaying in putting the complainant to possession of the property, has naturally put the complainant to mental distress, agony and hardship, for which we direct OP to pay Rs.10,000/- as compensation and Rs.10,000/- towards litigation expenses and answer point No.2 partly in the affirmative and pass the following;

ORDER

1. Complaint is allowed in part with cost.
2. Complainant is entitle for possession of the flat No.PHA-14-202 and OP to complete the construction of the flat in all respect and to hand over the same within 30 days from the date of receipt of this order and complainant to take possession of the flat by making an inventory as to the defect/short coming and OP to repair the same within 30 days from the date of notifying the defects in writing to the OP. 
3. OP is directed to pay a sum of Rs.1,000/- pm., from 1^st September 2014 till 18.03.2017 i.e., the request made by the OP to take possession of the property.
4. OP further directed to pay Rs.10,000/- as compensation and Rs.10,000/- towards litigation expenses to the complainant.
5. The OP is further directed comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this forum within 15 days thereafter.
6. Send a copy of this order to both parties free of cost.

Note:You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order failing which the same will be weeded out/destroyed.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 03^RD DAY OF DECEMBER 2021)

MEMBER                                PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex P1: Email correspondences between the parties

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: Sri.B.Praveen Kumar

Copies of Documents produced on behalf of Opposite Party/s

Ex R1: Authorization letter

Ex R2: Copy of the sale agreement between the company and complainant

Ex R3: Construction Agreement

Ex R4: Joint Inspection Report

Ex R5: Email correspondences (2 Nos.)

Ex R6: Certificate u/s 65B of the Evidence Act.

MEMBER                                        PRESIDENT

HAV*