O R D E R
Ms. Cynthia A. Colaco, Member)
The complaint is filed against the opposite parties by the complainant through her attorney under section 12 of the C.P.Act and in the complaint it is stated as under:-
1. That by Agreement for Construction and Sale dated 22-10-2007 the complainant had entered into an agreement for Construction and sale of the said Flat No. S-1, admeasuring 87.09 square metres, situated on the second floor of the building known as Sundar Vastu.
2. That as per the terms in the said agreement and more specifically the clause No. 9 the said flat was to be handed over within 24 months from the date of signing of the said agreement.
3. That in the month of April 2010, although the work in the flat was not complete in all respects more specifically with respect to power, water and formation of the society, the keys were handed over to the complainant and the opposite party no.1 assured that the pending works would be complete shortly.
4. That though through discussions, telephonic reminders and correspondence the opposite party was reminded to honour the contractual obligation, they did not do so.
5. That they demanded a payment of Rs. 1,33,446:00/-,which was either not due as per the said agreement or not duly supported by the full particulars. That the co-operative housing society of all the flat owners was not formed and is still not formed.
6. That by letter dated 08-05-2012, the complainant requested the completion of flat as per the agreement and called for joint inspection and furnishing full particulars of amount due, not quantified in the agreement and requested a response within fifteen days.
7. That a legal notice came to be addressed on 04-10-2012. That subsequently many meetings were held between the parties, the last one being on the 14-02-2013 wherein the opposite party agreed to complete all the works as per the agreement , except for the formation of the society as also to furnish the full particulars of amounts claimed as due.
8. That the letter dated 18-08-2009 was issued on 14-02-2013 intimating the completion of the flat whereupon a payment of Rs.53,943:00 was made, that the sale deed would be executed pending the clarifications to be furnished and payment of maintenance charges.
9. That as details of dues claimed were not furnished as agreed the execution of the sale deed was cancelled under the pretext of non-payment of maintenance charges, which factually were not needed to execute the sale deed. That the flat which was due to be handed over on or before 21-10-2009 was handed over only on 14-02-2013, thereby attracting clause No. 34, which amount due totals Rs.40,000/-.
10. That by letter dated 12-03-2013, maintenance charges of a sum of Rs.17,500:00 were paid although maintenance was not carried out.
11. That the sale deed executed on 18-03-2013 necessitated rectification as there were a number of mistakes and the rectification deed was executed on 09-04-2013 towards which an additional amount of Rs.204:00 was paid by the complainant.
12. That for registration an amount of Rs.1,220/- was paid and receipt is not handed over nor is the amount refunded. That legal notice was addressed on 06-05-2013 to refund the amounts wrongly collected which was not replied.
13. The claim was filed praying that the opposite parties jointly and severally pay a sum of Rs.77,137:00 (5000/- , Rs. 17,500/-, Rs. 10, 635, 4002:00 and 40,000:00 ) along with interest of 15% per annum from the date of completion i.e. 14-02-2013; that the opposite party be directed to form a co-operative society of all flat owners of Sundar Vastu; for inconvenience mental torture and harassment caused due to delay of completion of the said work ;
14. The said complaint was presented on 09-07-2013 and admitted on 26-07-2013. The opposite parties were served and filed their written version on 02-09-2013 and stated as under:
i) that the complaint is not maintainable as there are no pleadings and/or prayers which bring the reliefs sought for under the Act;
ii) that recovery of money as prayed for does not come within the ambit of the CPA.
iii) the prayer termed at (b) is not within the scope of the Agreement or Deed of Sale and therefore does not create any obligation on the purchaser.
iv) there are no pleadings with regard to prayer © and therefore liable to be dismissed.
v) that the complaint is barred by the law of limitation as the cause of action arose on 22-10-2009 and the complaint is filed on 09-07-2013 and further pleaded that the complainant distorted facts to suit her own case.
15. That the complainant was called to take possession by letter dated 18th August 2009 however the complainant took possession of the same only in April 2010, and as the relationship between the parties was cordial the opposite parties did not think anything was amiss in possession not being taken on the day they were called upon to do the same. That the formation of the society had nothing to do with the completion of the flat , that , being the purchasers obligation as per clause 27 of the agreement. That water and electricity connections were duly provided for and that there were no pending works as alleged in the complaint.
16. That there was no occasion for any alleged personal discussion, telephonic reminders and correspondence. That all dues payable to the opposite parties and various authorities had to be paid by the complainant and were not received de hors the agreement or in excess of what was receivable. That from the pleadings at para 5 it is clear that the complainant is not sure as to what is payable under the agreement.
17. That as the facts stated in para 7 are distorted and do not portray the correct picture the same are denied. They deny receiving the letter dated 08-05-2012. That there was no question of any follow up as possession was taken by the complainant in April 2010, despite intimation on 18th August 2009. The completion is duly evidenced by the statutory authority issuing occupancy certificate on 14th August 2009.
18. That the complainant had not effected the various payments under the agreement despite being provided specifics of the same. That detailed expenditure incurred with respect to installation of the electrical transformer and details of the infrastructure tax have also been provided as a consequence of which the opposite parties had to bear the same and make the requisite payments, which payments were finally made in the 1st week of March 2013 only after being informed that the sale deed would not be executed until all the payments due and payable to them were made.
19. That no other letter was received by the opposite parties except the legal notice dated 04-10-2010 in which it was stated that the complainant would like to resolve the disputes amicably .
20. The said letter was replied by letter dated 11-10-2012 wherein it was agreed that in the event there were any issues the same could be resolved amicably. Further in the reply it was stated that the flat was given out on leave and license without making full and final payments thereby violating and contravening the provisions of clause 20 of the agreement and pointed out that neither was this fact nor any other points raised in the reply to the legal notice replied to.
21. That the deed of sale was executed on the 18th March 2013 before the sub-registrar since the disputed flat was completed in all
respects and had no pending work whatsoever. The complainant agreed to execute the sale deed however no assurances were given to the complainant as claimed.
22. That the delay in executing the sale deed occurred as the complainant was unwilling to pay the requisite amounts for stamp duty, registration fees and other charges as well as advocates fees which have not been paid till date.
23. That all the letters alleged to have been sent to the opposite parties are concocted documents to create a semblance of proof for false allegations. That this conduct defies all rationale and is a pathetic attempt at extorting money from the opposite parties. No prudent person would take possession of an incomplete flat, threaten legal action and not initiate any proceedings and execute the deed of sale.
24. That the alleged meeting mentioned in the plaint to discuss alleged issues or the alleged meeting said to have taken place on the 10th February 2013 is totally denied. It is also denied that letters were addressed on 14-02-2013 dated 18-08-2009 or 12th March 2013 or any other date or that any clarification was sought to be provided by the opposite party. That the amount of Rs. 53,943.00 paid by the complainant was partly towards the balance payment of the purchase price of the flat and partly towards the infrastructure tax, electricity and water connections and other charges payable under clauses 12, 23 and 28 of the agreement.
25. It is denied by the opposite parties that there was delay of handing over the flat and that the complainant is entitled to compensation of Rs.40,000:00, that the said flat was handed over far ahead of schedule and despite the fact that the necessary payment as required and dues to be cleared to the opposite party were not done.
26. That apart from the possession letter that was merely handed over as the relationship between the parties was very cordial there was no correspondence of any sort exchanged.
27. All the contents contrary to what is stated above have been denied. That maintenance charges are clearly specified in schedule III of the agreement that the same were not paid as a favour and that the opposite parties are still doing the maintenance work presently as the purchasers have failed to constitute themselves into a society or entity for the purpose.
28. That a copy of the draft sale deed was handed over to the complainant and at that time the mistakes were overlooked and not pointed out which resulted in a rectification deed which costs were borne by the opposite parties totally and that the complainant had to pay additional sum of Rs.204/- is denied.
29. That no sums are due from them to the complainant much less the registration fees of Rs.1,220:00 paid to the sub-registrar of a sum, towards which a receipt was issued, which receipt is not in the possession of the opposite parties.
30. The receipt of letter dated 10th April 2013 is denied along with all the other letters mentioned by the complainant alleged to have been addressed to the opposite parties. That the correspondence was concocted in order to buttress the complaint filed. That there was never a question for replying to a letter never received.
31. That the legal notice was received on the 06-05-2013 but was not replied as the same was without merit and was worded similar to the legal notice sent earlier which had been replied to by the opposite parties. That no amounts had been wrongly collected which had to be refunded.
32. That repetitive notices or alleged letter do to give fresh cause of action. That by the complainant’s own showing the cause of action arose on 22nd October 2009 and the complaint has been filed on 09-07-2013 more than 3 years from the date of cause of action and is barred by the law of limitation.
33. That the cause of action as alleged arose on 13-05-2013 is totally denied. It is stated that the complaint is hopelessly beyond time and the reliefs sought for are incapable of being granted.
34. That the sums prayed for are Rs 5,000:00 towards deposit for formation of society, Rs.10,365:00 was the complainant’s share for expenses of installation of transformer by the electricity department and Rs.4002:00 was the complainants share of infrastructure tax which in its entirety have been brought to the complainants knowledge and have been deliberately omitted for the pleadings.
35. The issue to be decided in the present complaint is whether the complainant proves that her claim is within the period of limitation?
36. It is not in dispute that the complainant and the opposite parties entered into an agreement dated 22.10.2007 and that as per the agreement the opposite parties were to deliver the flat complete in all respects within 24 months from the date of the execution of the agreement which is on or before 21st of October 2009.
37. The complainant in her complaint alleges that the opposite parties did not deliver the flat within the stipulated period but delivered the same in the month of April 2010, however that the same was not complete in all respects.
38. The opposite parties contend that the flat was ready on 14.8.2009 which is evidenced by the occupancy certificate issued by the appropriate authority but they state that they issued a letter to the complainant which is dated 18.8.2009 informing them about the flat being ready for delivery and asking them to come and take the keys.
39. The complainant however contests that the said possession letter being served on them on 18.8.2009 and alleges that the same was served only on 14.2.2013.
40. It is not in dispute that the said deed of sale of the said flat was executed on 18.3.2013 in which deed at page 13 the recital reads: “ AND WHEREAS the occupancy certificate was issued by Margao Municipal Council, bearing No. 3(OC)1/09-10/TECH/80, dated 14/08/2009, after the completion of the said project”
41. Further at paragraph 2 a. it is stated that “the developers/owners are in actual possession of the said flat and are entitled to enter into the present deed of sale with the purchaser”, however in the said deed of sale no mention is made as to the delivery of the flat.
42. By the very admission of the complainant the flat was delivered to her in the month of April 2010 which fact is also confirmed by the opposite parties in their written version at paragraph 14.1 .
Therefore whatever claims the complainant was entitled to, had accrued in April 2010 and not on any date subsequent to the same with respect to all issues pertaining the construction and delivery .
43. The contention of the complainant that the cause of action arose on the opposite parties not having complied with the notice dated 06.05.2013 cannot be accepted since the cause of action would arise on the date of the delivery of the flat and not on any date the complainant chooses to make some demand against the opposite Party.
44. The complainant has in her complaint claimed a sum of rupees seventy seven thousand one hundred and thirty seven which she alleges to have been wrongfully claimed by the Opposite Parties from her. The Opposite Parties contend that the said sum of Rs. 5,000.00 is towards the formation of the Society, Rs. 10,365.00 as complainant’s share of expenses for installation of transformer by Electricity Department, Rs. 4002.00 being complainant’s share of infrastructure tax as set out in clauses 12, 23 and 28 of the agreement.
45. In the circumstances the present complaint is barred by limitation as the same has not been filed within two years from April 2010 . The same has been filed on 09.07.2013 and therefore the same is dismissed.
O R D E R
Complaint dismissed.
(Shri Jayant S. Prabhu)
President
(Ms. Savita G. Kurtarker)
Member
(Ms. Cynthia A. Colaco)
Member
