BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 15^TH DAY OF JUNE 2023

ORDER

SMT.M.SHOBHA, PRESIDENT

1. The complaint has been filed under Section 35 of C.P.Act (hereinafter referred as an Act) against the OP for the following reliefs against the OP:-
   1. To buyback the apartment from the complainants for a price advertised by the OP for the sale of similar flats as on date as the Ops have failed to resolve the construction defects by fixing the seepage issues.
   2. To reimburse costs incurred towards the following;

i)       Maintenance of the apartment from the time they have purchased the apartment.

Registration and travelling costs incurred by the complainants for the purchase of the property.

For interior decoration, furniture’s and furnishings made by the complainants.

3. To reimburse expenses incurred Rs.5,00,000/- due to sheer act negligence, non-responsiveness, deficiency of service and unfair trade practice on the part of the Ops.
4. Compensate with an amount of Rs.15,00,000/- for causing mental agony.
5. Direct the Ops to reimburse the cost of litigation of Rs.2,00,000/-.
6. Direct the Ops to reimburse the cost of this proceedings and pass such other orders/relief.

2. The case set up by the complainant in brief is as under:-

It is the case of the complainant that they have purchased 3 BHK residential apartment No.702, on the 7^th floor of the building block known as C Block in the residential apartment complex by the name Sipani Bliss-I, having super built up area of 1323 sq. feet along with one semi covered car parking space at ground level and proportionate 556.61 sq. feet of undivided interest in the land comprised for a total consideration of Rs.40,00,000/- on 27.09.2018 under registered sale deed.

3. After purchase of the apartment the complainant started residing in the apartment with his spouse and with his parents. The flat was good as it is newly purchased but within a month of his stay to the utter shock of the complainant he noticed that the flat had seepage issues and the rain water was dripping and seeping through some major cracks found in the sealing of the flat.  The cracks were found to be too big and socked with rain water.  In view of this the complainant and his parents and his spouse were suffering from carrying out day to day activities as the water dripping from all the nooks and corners of the residential apartment.  The water seeped from the roof into their food while cooking and their mattress were completely socked with rain water while sleeping. Rain water was clogging the floors and the mattress in the master bed room kitchen area living and dining area. These conditions were aggravated and affected the basic comfort necessary and accomidability inside the poorly constructed flat.  The complainant was astonished to their level of competency the home had major seepage issues and was not able to meet the basic requirements that a home buyer demands.
4. It is further grievance of the complainant that he has purchased the said apartment by taking home loan and also spent substantial amount for interiors and furnitures for the new flat and everything got wasted as the wood work done for interiors and furnitures were getting damaged because of the seepage issues.  He has purchased the property with hard earned money and savings.  He is completely cheated and deceived and deprived.
5. The complainant has brought the issue to the notice of OP supervisors Mr.Shivakumar and Mr.Venkateshan but no steps were taken to fix the leakage.  After that he has raised issue to the manager of the Ops through formal email on 17.04.2019 hoping that the problem will be solved as soon as possible.  The OP with a negligent attitude after six days from the date of raising the issue replied to the email on 23.04.2019.  They have reassured and promised that they have already initiated fixing the water leakage clogging and seepage issue with chemical water proofing and this process will take two days to fix the issue. Soon after the chemical water proofing done by the Ops on 15.05.2019 the complainant has noticed the unusual cracks and the walls soaked with water.  As the complainant could not sleep as the water used to drop directly on him and the mattress while they were asleep he has raised the issue to heir skillful workmen to solve the problem which reoccurred within a week.
6. It is further case of the complainant that on 31.05.2019 he made several attempts to contact the Ops who were not co-operating and responding to the calls.  In view of this the complainant has suffered huge cost. Again the complainant contacted the Ops several times and on august 2019 the Ops have done water proof with mesh fixing and a couple of coating with water proof liquids and claimed the water proof done has a guarantee of eight years.  Within a short period i.e., within a month the complainant again faced the same leakage issue and he was mentally exhausted as the Ops have harassed in for more than a year without identifying and fixing the issues.  On 10.04.2020 the complainant again reported the same issue for one year he has been facing the same problem remained unaddressed.   The complainant has waited for two years as on 29.11.2020 and even now he has been facing the same issues and additionally it has become dangerous to stay as the water was dripped into all the switch board which aggravated the possibilities of electric shock all around the house.  The electrical fittings in the sealing are the place where the leaks originate the fans got spoiled as the water entered the motors and the complainant has got fear in handling the switches.  The complainant has requested the Ops to cure the defect in the roof by sending multiple emails, but nothing has been altered. His elderly parents lives are put at greater risk in view of the negligent behavior, deficiency in service and unfair trade practice in cheating this complainant by selling them a low grade defective flat.  The complainant stay far away from Bangalore on job calls and worked hard and he was paying hefty loans and heard cries of elderly parents each time. He was mentally and emotionally exhausted and broken down beyond words.  He is paying the maintenance amount regularly, but no problem raised by the complainant was resolved by the Ops, whose promise to do it.  When the complainant stops paying the maintenance charges the Ops later did a temporary patchwork which never resolve the issue as each time there is rain the water seeps inside the flat.  When the Ops have failed to rectify the problem and cure the defective roofs even after lapse of four years, he has fed up with the problem and filed this complaint claiming the relief. Hence the complainant prayed for allowing the complaint.

7. After service of notice the Ops appeared before this commission through their counsel and filed their version. It is the case of the Ops that the complaint is not maintainable and liable to be dismissed, since the relief claimed in the complaint is neither a case relating to deficiency in service nor a case of defect in goods.  The entire claim of the complainants are not only exaggerated but also baseless. The averments made in the complaint does not make out any deficiency in service on the part of the Ops. No such deficiency has been established in the manner prescribed under the C.P. act.  The complainant has not denied the fact that the apartment owners association has been formed and it has taken over the responsibility of maintaining the apartment.  The said association has not been made as a party and hence the complaint is not maintainable.
8. It is the case of the OP that the seepage issue has been resolved prior to 25.03.2021 itself and the complainants have given their satisfactory letter on 25.03.2021.  As per clause 5 of schedule D of the sale deed in question the maintenance of the building and the common area shall be done by the OP until formation of owners association only.  Thereafter the apartment owners association has to take care of all the issues in respect of the apartment including the schedule property.  As such there is no deficiency in service on the part of the Ops, since the apartment owners association has been formed with effect from April 2021 and the said association is taking care of all the responsibility and maintenance of the apartment. The complainants have no right to make any allegations against these Ops.  
9. It is further case of the OP1 that the sale deed was executed on 27.09.2018 and complainants have taken possession on 01.10.2018 stating that they have taken of the schedule property in good condition without any defects. The complainants have informed this OP1 on 17.04.2019 about the issue in question which is after the lapse of seven months from taking of the possession of the schedule property. The Ops have taken steps to resolve the issue raised by the complainant through professional workers by carrying out the water proofing coating and plastering works.  The complainants having been satisfied with the same have issued the satisfactory letter on 25.03.2021.  Under these circumstances the complainants have no right to claim any compensation from this OP and there is no deficiency in service. Therefore the OP1 prayed for dismissal of the complaint.
10. The OP2 has also filed his version stating that he is only the owner of the land on which the apartment /complex has been constructed, she is in no way involved herself in any of the affairs of the apartment in question.  There is no privity of contract or contractual obligation to rectify any alleged defects in the apartment whatsoever between the complainant and the OP2. She has entered into JDA with OP1 and the OP1 has constructed the apartment in question.  This OP2 is a senior citizen and she is not responsible for any act done by the OP1 either contractually or otherwise. Hence the complaint is not maintainable against her. The OP2 prayed for dismissal of the complaint.
11. The complainant has filed his affidavit evidence and relies on 08 documents.  Affidavit evidence of OP1 has been filed and OP1 relies on 06 documents and OP2 has filed his affidavit evidence and relied on one document.
12. Heard the arguments of both the parties.  Perused the written arguments filed by both the parties.
13. The following points arise for our consideration as are:-

1. Whether the complainant proves deficiency of service on the part of OPs?
2. Whether the complainant is entitled to relief mentioned in the complaint?
3. What order?

14. Our answers to the above points are as under:

Point No.1:  Affirmative

Point No.2: Affirmative in part

Point No.3: As per final orders

REASONS

15. Point No.1 AND 2: These two points are inter related and hence they have taken up for common discussion.  We have perused the allegations made in the complaint, version, evidence, written arguments and documents filed by both the parties.  
16. It is clear from the allegations and the documents, the complaint and version that the complainant has purchased the schedule property under registered sale deed dated 27.09.2018 for a sale consideration of Rs.40,00,000/-.  The complainant has produced the copy of the sale deed as Ex.P4.  Earlier the complainant has also entered into sale agreement on 24.09.2018 as per Ex.P5. After verifying the representations and warranties stated by the OP1 the builder. The complainant transferred the entire consideration amount in favour of the OP1 much before the execution of the sale deed.  
17. The main grievance of the complainant is that soon after the purchase of the schedule apartment the sealing of the apartment started dripping water and due to the seepage of the water the walls were getting damp, the plaster swelling up and breaking out and the interiors and the furniture’s in the new apartment getting damaged.  The complainant has raised the issue to OP1 on several times as both the complainants are not residing in India at that point and their senior parents are occupying the said apartment. The complainants have to make international calls to reach out the builder and get the issues fixed.
18. Inspite of several attempts made by OP1 builder the apartment issue could not be resolved. The OP1 fixed the roof and used his best means to repair the same on as many as three times, but the repair work made by the OP1 does not stop the seepage of water into the schedule apartment. In view of this the complainant has suffered mental agony. As the complainants have raised the home loan for purchase of the apartment and they have spent substantial amount for interior works and also for furnitures they could not enjoy the property peacefully.  As per the sale agreement clause 15 the builder OP1 has to attend any civil and structural defects noticed in the schedule apartments if it was brought to the notice of the developer within a period of 12 months from the date of handing over possession or date of issuance of notice to the purchasers.  It is further clearly stated in the clause 15 of the agreement that the small air cracks in the cement plastering masonry work, doors and windows natural warping of doors, windows shutters etc., shall not be considered defect under this clause. These errors will be rectified at the cost of the developers within the defect liability period.  
19. As per Ex.P8 the complainants have raised the issue within first 12 months of the purchase inspite of making several attempts the OP1 builder failed to rectify the defects in the apartment within the defect liability period. The problem persists even today the Ops have committed breach of terms and conditions in the sale agreement.
20. It is further grievance of the complainants that the Ops efforts in fixing the seepage issues were not fruitful because the materials used in the construction were substandard and the mixture used to build the concrete was not in the right proportion and the slab reinforcement was not covered properly during concreting. The Ops exposed slab enforcement at the ends are exposed column reinforcements provided a pathway for water to travel through the concrete. These actions and inactions of OP1 builder have the effect of curtailing restricting or prejudicing complainants their right to convey the schedule property.  No person expected to buy a property with latent defects which render the property inhabitable.  As per clause T of the sale deed the Ops have assured that they have no patent or latent defects in the schedule property and relying on the representations of the OP the complainants have agreed to purchase the concerned apartment.
21. It is further case of the complainant that the breach of the aforementioned clauses in the sale agreement and sale deed clearly showcases the lapse of the OP builders which amounts to deficiency in service.
22. On the other hand the contention taken by the OP1 is that the complainant has failed to prove any deficiency of service on the part of these Ops as prescribed under the C.P. Act.  The complaint itself is not maintainable since the complainants have not made the apartment owners association which is already formed as OP in this case and they have taken the responsibility of maintaining the apartment.  
23. It is the specific contention taken by the OP1 that the issues raised by the complainant has been resolved prior to 25.03.2021 itself and the complainants have also given their satisfactory letter as per Ex.D4 stating that the subject issue has been rectified by water proofing PU quoting method. As per clause 5 of the schedule D of the sale deed the maintenance of the building and the common area shall be done by the Ops until formation of owners association.  Thereafter the apartment owners association has to take care of all these issues in respect of apartment including the schedule property. The sale deed was executed on 27.09.2018 and the complainants have provided the possession taking receipt as per D2 on 01.10.2018 stating that they have taken possession of the schedule property in good condition without any defects.  The complainants have informed the OP about the issue in question on 17.04.2019 after lapse of seven months from the date of taking possession. These Ops have taken steps to resolve the issue raised by the complainants through professional workers by carrying out the water proofing, quoting and plastering works and they have also relied on the invoice dated 17.03.2021 issued by RMK groups as Ex.D3.  Thereafter the complainants having been satisfied with the same they have issued the satisfactory letter dated 25.03.2021 as per Ex.D4.  The issue has been resolved prior to 25.03.2021 itself and the complainants have given their satisfactory letter and hence they have no right to claim any compensation from this OP.
24. In support of their contention the OP1 has relied on six documents.  On the other hand, the contention taken by the OP2 is that she being the land owner has nothing to do with this issue which is in between the complainant and OP1. She has entered into JDA with OP1 and she is no way concerned with the construction work. The complaint itself is not maintainable against her. In addition to this the complainants have not produced any material evidence in order to prove their contention. She is not at all responsible for any act done by the OP1 either contractually or otherwise.  
25. It is clear from the evidence and the documents that the defects in the roof of the complainants apartment is not at all rectified or repaired by the OP1 who is a builder and who has constructed the apartment and sold the same on the basis of the JDA executed by the OP2.  As per the terms and conditions in the clause 15 of the sale agreement and clause 3D of the sale deed it is clear that it is the duty of the OP1 who is the developer to cure the defects relating to civil or structural defects being noticed in the schedule apartment which were brought to the notice of the developer within a period of 12 months from the date of handing over possession of the apartment.  It is clear from Ex.P8 that the complainants have brought the defects to the knowledge of the OP1 within seven months after they occupied the building.  As per clause T of the sale deed the Ops have assured to the complainant that there are no patent or latent defects in the schedule property and relying on the representations of the OP the complainants have purchased the apartment by paying the sale consideration amount even before execution of the sale deed itself.  Even though there is a specific clause which is binding on the builder/developer that he has to cure the defects relating to civil and structural defects noticed in the schedule apartment, the OP has not cured the defects and thereby they have committed breach of terms and conditions in the sale deed and also the sale agreement.  
26. The complainant has relied on the decision of the Hon’ble NCDRC in Director General, Air Force Naval –vs- Lt.Udhay Bhan Singh aand others on 31.01.2022, it is clearly held in this decision that the complaints regarding leakage/seepage/cracks were immediately pointed out to the housing board after completion of the project the defects were rectified or cured by the maintenance team of the builder during the defect liability period but still the defects persisted in the building and number of complaints were made by the complainants to the maintenance team of the builder.  The Hon’ble NCDRC after considering the issue has come to the conclusion that the Ops are responsible for the defects of leakages/seepage/cracks in the building units provided to the complainants.  Despite the complaints attended to by the builder during the defect liability period the problems continued and are still subsisting in the building has been established by the complainants by producing the photographs of the building.  Hence the Hon’ble NCDRC has confirmed the order passed by the Hon’ble State Commission.
27. The facts and circumstances in the above decision and the facts and circumstances in this case are one and the same. The Ops have failed to meet the standards of duty of care has rendered /made the flat inhabitable.  The photographs produced by the complainant as per Ex.P8 clearly discloses that the seepage is occurring around the fan connections which made the apartment prone to short circuit. Debries falling from roofs after water proofing was done by Ops workmen all these problems in the apartment clearly discloses that the apartment is unsafe for human inhabitation.  Even though OP1 has made several attempts to fix the defects the seepage issues are continued which makes it impossible for the complainants to dwell in the apartment or to rent out the same to others.  Under these circumstances the complainants have clearly established the deficiency of service, negligence on the part of the Ops. Even though the complainants have raised the issue during the defect liability period as per the terms and conditions of the sale agreement and the sale deed the Ops have failed to cure the defects which is a civil and structural defect. When the complainants have purchased this defective apartment by paying substantial amount of Rs.40,00,000/- it is the duty of the Ops to hand over possession of the building which is not having any defect and it is safe for human habitation.  Under these circumstances the Ops have failed to hand over the safe apartment to the complainants even after received the entire sale consideration amount and they have made the life of the complainants miserable.  The complainants are unable to stay in the apartment with their parents peacefully even after spending lacks of rupees on the apartment.
28. It is also clearly observed by the Hon’ble NCDRC that Capital Coop. Group Housing –vs- M/s B & B Growing on 7 Aug 2020 that the leakage or seepage had happened not only on account of the quality of the material supplied by M/s MBT but also on account of defect in the quality of work executed by the OP.  The Hon’ble NCDRC has directed the Ops to compensate the complainant.  
29. The complainants have sought for a direction to the Ops to buyback the flat for the total sale consideration with respect to todays market value.  In support of their contention they have also relied on the order passed by the Hon’ble state Commission in VSAN Infrastructure Pvt. Ltd., -vs- Smt.Leela D On 19^th Nov, 2021, in this case the Hon’ble state Commission has directed the OP to refund Rs.3,39,800/- along with interest at 8% p.a., from the date of receipt of the amount subject to execution of deed of reconveyance in favour of the OP relinquishing her right in respect of site No.169 as mentioned in the sale deed.  The Hon’ble state commission has also given an alternative relief that if the complainant still intends to retain site No.169 as mentioned in the sale deed can do so and in such case for deviating as to the number of site and its location OP is directed to pay Rs.1,00,000/- as compensation towards mental agony and hardship and inconvenience and also Rs.5,000/- was ordered towards cost of litigation.
30. After relying all these above decisions and the documents and evidence led by the complainants, the complainants have clearly established the deficiency of service and negligence and breach of terms of agreement and the sale deed on the part of the Ops. The Ops have also relied on the decisions of the Hon’ble Apex Court.  They are relating to the maintainability of the complaint.  In view of the discussion made above it is clear that the complaint is very much maintainable.  Hence the decisions cited by the OP are not applicable to the facts and circumstances of this case. Therefore the complainants are entitling for the relief claimed in this complaint. Hence we answer point No.1 in affirmative and point No.2 partly in affirmative.
31. Point No.3:- In view the discussion referred above it is necessary to direct the Ops to buyback the apartment from the complainants for the price advertised by them for the sale of similar flats as on the date the Ops failed to resolve the construction defects by fixing the seepage issues, subject to execution of deed of reconveyance in favour of the Ops relinquishing their rights in respect of the schedule apartment mentioned in the sale deed dated 27.09.2018.  The Ops are further liable to reimburse the cost incurred by the complainants towards maintenance of the apartment from the time they have purchased and registration and travelling costs incurred by the complainant for the purchase of the property and for interior decoration, furnitures and furnishings made by the complainants and further pay a compensation of Rs.10,00,000/- for negligence and deficiency of service and for mental agony and harassment and further causing risk to the complainants and his aged parents by making them to face imminent danger of being electrocuted due to deficiency of service and further pay Rs.50,000/- towards litigation expenses and  we proceed to pass the following;

O R D E R

1. The complaint is allowed in part.
2. Ops are directed to buyback the apartment from the complainants for the price advertised by them for the sale of similar flats as on the date the Ops failed to resolve the construction defects by fixing the seepage issues, subject to execution of deed of reconveyance in favour of the Ops relinquishing their rights in respect of the schedule apartment mentioned in the sale deed dated 27.09.2018. 
3. The Ops are further directed to reimburse the cost incurred by the complainants towards maintenance of the apartment from the time they have purchased and registration and travelling costs incurred by the complainant for the purchase of the property and for interior decoration, furnitures and furnishings made by the complainants
4. Ops are further directed to pay a compensation of Rs.10,00,000/- for negligence and deficiency of service along with Rs.50,000/- towards litigation expenses to the complainants.
5. The OPs shall comply this order within 60 days from the date of this order, failing which the OP shall pay interest at 10% p.a. after expiry of 60 days on the sale price of Rs.40,00,000/- till final payment.
6. Furnish the copy of this order and return the extra pleadings and documents to the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 15^th day of JUNE, 2023)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party1 – R.W.1;

Documents produced by the representative of opposite party2 – R.W.2;