JUSTICE V.K.JAIN (ORAL)

The complainant booked a residential flat with the opposite party in a project, namely, ‘Unitech Cascades’ which the opposite party was to develop in Uniworld City, Kolkata. The sale consideration for the said residential apartment was agreed at Rs.13396383/-. The parties then executed a Buyers Agreement on 18.4.2007 in respect of the aforesaid transaction. As per clause 5a(i) of the agreement, the possession was to be delivered to the complainant  by 30.6.2010. The possession, however, was delivered to him on 12.5.2012. The possession was accepted by the complainant under protest and on the possession certificate, he made an endorsement to the effect that he would note down the points of protests in a different sheet of paper to the builder. There is no evidence of any such sheet noting down the points of protests  having been sent to the OP, but, the complainant claims to have sent a letter dated 13.8.2012 to the opposite party complaining of some defects in the apartment. No photocopy of the said letter has been filed. The typed copy of the said letter to the extent it is relevant, reads as under:-

“It is on record the above apartments possession was taken…..... under duress and …………….as a number of things and constructions deficiency were mentioned to you in our note. Till the date of writing this letter apart from other things, the following defects and uncompleted work has not been taken care off.

1. The non-functioning of locking system in glass……………….door in the main living room.

2. Water sipping inside from the class door of the servants quarter.

3. Water liking inside servants bathroom around …………………………

4.  The lawn has been dig out because of saying the …………………spreading all over inside.

5.  Plasting of the outer wall ……………….. servants quarter …………………. has not been completed.

We once again earnestly request to take appropriate action to rectify and ......... the unfinished work without any further delay so that we can ……………… peacefully.”

2.      There is no documentary proof of the said letter dated 13.8.2012 having been delivered or even dispatched to the opposite party. The opposite party, however, has placed on record a notice dated 29.12.2014 sent to it by the complainant through C.K.Jain & Co. Solicitors and Advocates. A copy of the earlier notice dated 10.11.2014 was annexed to the legal notice dated 29.12.2014.

3.      In the notice dated 10.11.2014 purporting to have been sent to the opposite party, the complainant pointed out the following defects in the flat:-

“(i) Quality of vitrified tiles on the floor very poor finished and not laid properly.

(ii)  Floor skirting not done in a correct manner and the finish very poor.

(iii)  The finish of main door also very poor.

(iv)  The Locking system of the entrance door from Lift (1st floor) with the main frame of the door not done properly.

(v)  The S. S. Railing which have been provided is of S. S. 202 quality instead of S. S. 304 quality as a result the rust is coming which was also shown to your representative. The workmanship very poor as the same are not in a straight line.

(vi)  The staircase marble work not done properly. Wooden holding polishing very poor and looks old. The vertical Square railing painting very poor finish.

(vii)  Electrical wiring layout plant not given.

(viii)  One broken marble slab was not fixed as that should be.

(ix) There was no exhaust in the Kitchen. Marble polishing also very poor.

(x)  The Model flat shown at the time of booking and the Apartment which was given, differ a lot in finish and quality.”

4.      It was also alleged in the said legal notice that the complainant had requested  the opposite party to finish the paint work and flooring of the apartment but the same was not done due to sickness of their Civil Engineer and ultimately finishing of paint work was carried out at the cost of the complainant for which a bill of Rs.53352/- was sent but had remained unpaid.

It was also alleged in the said notice that intimation of non-rectification of defects, the representative of the OP had asked the complainant to ignore the bills for maintenance and had represented that maintenance charges would not be raised before 1.4.2014.

5.      Since no redressal was provided to the complainant despite legal notice, he approached the concerned State Commission by way of a consumer complaint filed on 5.9.2016. The State Commission vide its order dated 4.10.2016 took the view that it did not have pecuniary jurisdiction to entertain the complaint, the value of the flat being more than Rs.1 crore. The complainant thereafter approached this Commission with the present complaint and seeking the following reliefs:-

“(i)  The opposite party be directed to pay to the complainants the sum of Rs.6730108/- as indicated in paragraph 30 hereinabove, along with interest @ 18% p.a.

(ii)  Declare and direct that no demands of maintenance charges are payable to the opposite party by the complainants.”

6.      The complaint has been resisted by the opposite party which has taken a preliminary objection that the complainant is not a consumer he having booked as many as three units in two complexes of the opposite party. The second preliminary objection taken by the opposite party is that the complaint is barred by limitation prescribed in Section 24A of the C.P. Act since the possession of the flat was given to him on 12.5.2012 and even the Conveyance Deed was executed on 12.4.2013.  On merits, the allotment of the flat to the complainant as well as the delivery of possession to him has not been disputed. It has been denied that the possession of the apartment was taken by the complainant in an incomplete and inhabitable condition. It is also pointed out in the written version that the compensation amounting to Rs.373445/- in terms of Clause 5.c(ii) of the Buyers Agreement has already been credited in the account of the complainant and has been accepted by him without any protest.

7.      As noted earlier, the possession of the allotted flat was delivered to the complainant on 12.5.2012. The cause of action for claiming compensation for the delay in delivery of possession of the allotted flat arose to the complainant on the day, he took possession of the flat. Computed from that date, the consumer complaint ought to have been instituted by 12.5.2014. However, even before the State Commission, the consumer complaint was instituted only in September 2016. Therefore, it was clearly barred by the limitation prescribed in Section 24A of the C.P. Act on the date it was filed before the State Commission.

8.      As far as the alleged defects in the house are concerned, all the defects were such which one would notice even at the time of taking possession of the apartment. Only five specific defects were pointed out in the letter dated 13.8.2012. The remaining defects came to be pointed out only in the legal notice dated 10.11.2014, which was more than two years after the possession of the apartment had been taken. Assuming that all these defects existed on the date the possession was taken, the consumer complaint seeking removal of those defects or compensation in lieu thereof ought to have been instituted within two years from the date on which the possession was taken.

9.      Though it is submitted by the learned counsel for the complainant that these defects were not visible at the time the possession was taken, the said contention cannot be accepted. In my opinion, all these defects including quality of vitrified tiles, finishing of floors skirting, finishing of main  door, defects in the locking system of the entrance door, rust on the SS railing, defects in the marble work of the staircase, broken marble slab and absence of exhaust in the kitchen as well as the quality of marble polishing and painting are such which would be visible at the time one takes possession of the apartment. In any case, this was not the case of the complainant in the legal notice sent on 10.11.2014 that the said defects were noticed by him much after he had taken possession of the apartment. To the contrary, it was stated in the legal notice that 10.11.2014 that at the time of taking possession of the flat in incomplete state the complainant had found several inherent  defects and immediately thereafter he had intimated the defects mentioned in the notice to the opposite party. Thus the stand taken in the legal notice was that all these defects existed even at the time the possession of the apartment was taken. Therefore, it can hardly be disputed that the consumer complaint even to the extent it pertains to the alleged defects in the residential flat was clearly barred by limitation on the date the complaint was instituted before the State Commission in September 2016.

10.    As far as maintenance charges are concerned, it is stated in the legal notice dated 10.11.2014 that on 11.12.2013 the representative of the opposite party had asked the complainant to ignore the bills which had already been generated and had represented that the maintenance charges would not be raised before 1.4.2014. There is no evidence of maintenance charges for the period prior to 1.4.2014 having  been demanded by the opposite party from the complainant at any time between 11.12.2013 when the representative of the opposite party assured the complainant that maintenance charges would not be raised before 1.4.2014 and November, 2015 when maintenance charges according to the learned counsel for the complainant were demanded after December 2013. Therefore, to the extent of maintenance charges, the consumer complaint is within the prescribed period of limitation  if the said period of limitation is computed from November 2015.

11.    Tough there is no documentary evidence of any assurance having been given by the representative of the OP to the complainant with respect to maintenance charges for the period prior to 1.4.2014, the fact remains that the averment made to this effect in the legal notice of the complainant dated 10.11.2014 was not controverted by the OP by responding to the said  legal notice. Therefore, I see no reason to disbelieve the case set out by the complainant  in this regard and therefore, hold that the maintenance charges cannot be demanded and recovered for the period prior to 1.4.2014. As regards the plea that the complainant is not a consumer he having booked as many as three apartments with the OP, it has been explained in the rejoinder filed by the complainant that one apartment was meant for him and one each for his two grandsons – Kunal Vikram Nopany and Karan Nopany. The complainant No.1 Goverdhan Nopany was  co-allottee with Karan Nopany in one of the allotments whereas he is a co-allottee with Kunal Vikram Nopany in the flat subject matter of the present complaint. In one allotment he was the sole allottee. Considering the above-referred explanation given by the complainant, it would be difficult to say that the apartments were booked by him for a commercial purpose.

12.    For the reasons state hereinabove, the complaint is disposed of with the following directions:-

(i)      The opposite party shall not recover the maintenance charges for the period prior to 1.4.2014 from the complainant in respect of the  flat subject matter of this complaint.

(ii)      There shall be no order as to costs.