Tamil Nadu

South Chennai

145/2007

Aiswaryam Owners Welfare Association - Complainant(s)

Versus

M/s.ARC CON DEVELOPERS - Opp.Party(s)

Thomas T.Jacob

01 Nov 2017

ORDER

                                                                        Date of Filing :   29.03.2007

                                                                        Date of Order :   01.11.2017

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI (SOUTH)

     2^nd Floor, Frazer Bridge Road, V.O.C. Nagar, Park Town, Chennai-3

PRESENT: THIRU. M.MONY, B.Sc., L.L.B. M.L.,                     : PRESIDENT            

                  TMT. K.AMALA, M.A. L.L.B.,                                 : MEMBER I

             DR. T.PAUL RAJASEKARAN, M.A ,D.Min.PGDHRDI, AIII,BCS : MEMBER II

 

C.C.NO.145/2007

WEDNESDAY THIS 1^ST DAY OF NOVEMBER 2017

Ambattur Aiswryam Owners,

Welfare Association,

Flat at A-15, 1^st Main Road,

Thiruvengadam Nagar,

Ambattur, Chennai 53.                               .. Complainant

                                        ..Vs..

M/s. ARC CON DEVOLOPERS,

Old No.242A, New No.350A,

T.T.K. Road,

Alwarpet,

Chennai 600 018.                                      .. Opposite party.

 

Counsel for Complainant           :   M/s. Thomas T Jacob & others           

Counsel for opposite party        :   M/s. K.Ganesan    

ORDER

THIRU. M. MONY, PRESIDENT

 

This complaint has been filed by the complainant against the opposite party under section 12 of the Consumer Protection Act 1986 seeking direction to make the payment of Rs.7,44,450/- being the cost paid by the complainantto the third party to rectify the defects in the flat with interest and also to pay a sum of Rs.12,00,000/- as deficiency of service and unfair trade practice and to pay cost of the complaint.

1. The averment of the complaint in brief are as follows:

           The complainant submit that the complainant association is registered under Tamil Nadu Society Act.  The opposite party is a builder and developer constructed the flats and the members of the association purchased individual flat from the opposite party from the year 1999 to 30.3.2005.   Even after the two portions namely G3 and G5  was not sold to 3^rd party but still with the opposite party.  Hence the claim is rightly within the time.

2.     Further the complainant state that there are various deficiencies committed by the opposite party with regard to Metro water sump and storage tank, Generators, Fire fighting equipments, telephone cables, intercoms and cable television provision and name plates,  boards and post box and defects in the construction namely improper weathering course in the concrete wall and the parapet walls are not properly plastered which results in seepage in rain water in almost all the flats.  Cracks have developed in the concrete decorative slopes and rain water is leaking into all the floors of the flats.   Many cracks have appeared in the overhead tank due to defective construction and poor quality of materials used  and the septic tank is not covered with good quality concrete slabs and  the flooring around the building is not properly laid.  The complainant appointed one Engineer namely Maruthi Vigneswara Builders to find out the estimate for such rectification of defects.    Further the complainant state that due to the defects in construction as well as omission to carry out the work,  of  the opposite party amounts to deficiency in service which caused mental agony and hardship to the complainant.  Hence this complaint is filed.

3.    The brief averments in Written Version of  the  opposite party is  as follows:

      The  opposite party deny each and every allegations except those that are specifically admitted herein.   The opposite party submit that  in fact this opposite party has already provided the various amenities referred to above and installed a Suguna Motor on 10.6.1999 itself bearing Serial No.11831.  Therefore, the allegation that this opposite party has not provided Metro water sump and Storage tank is an absolute piece of falsehood.   The allegation that for each purchaser, which suited their vested interest is not correct.  The opposite party also state that it is significant to note that the individual members had taken possession of their respective flats in the year 1999-2001 but they have chosen to form an association belatedly on 22.12.2006, nearly 7 years after taking possession of their respective flats, which clearly proves that there has been lack of co-operation among the members and no maintenance has been carried  out, for which this opposite party cannot at all be blamed in any event.  With regard to the letter dated 11.11.2005, this opposite party has categorically informed the complainant that this opposite party is in no way responsible for the alleged defects and that all the alleged defects are all due to poor maintenance of the flats by the members and due to non co-operation among the members of the complainant.   This opposite party submit that the present complaint is hopelessly  barred by limitation.  The complainant has indulged in the present case as an abuse of the process of this Honble Forum.   Assuming without conceding the complainant has any right, even the same has been ousted in  Civil proceedings.   Therefore the complainant is not entitled to any relief from the Forum.   Hence there is no deficiency in service on the part of the opposite party and the complaint is liable to be dismissed.

4.     In order to prove the averments of the complaint, the complainant has filed proof affidavit as his evidence and documents Ex.A1 to Ex.A11 marked.  Proof affidavit of opposite party filed and no documents marked on the side of the  opposite party.

5.   The points for the consideration is: 

 

1. Whether the complainant is entitled to a sum of Rs.7,44,450/- being cost paid by the complainant to the third party to rectify the defects in the flat as prayed for ?

 

2. Whether the complainant is entitled to a sum of Rs.12,00,000/- towards compensation with cost as prayed for ?

 

6.      POINTS 1 & 2:

        Both parties filed their respective written arguments.  The contention of the complainant is that the complainant association is registered under Tamil Nadu Society Act  as per Ex.A5.  The opposite party is a builder and developer constructed the flats and the members of the association purchased individual flats from the opposite party right from the year 1999 to 30.3.2005.   Even after that two portions namely G3 and G5  was not sold to 3^rd party but still with the opposite party.  Hence the claim is rightly within the time.   But on a careful perusal of the records filed before this forum reveals that Ex.A1 dated 3.6.1998 sale deed executed by Rani George in favour of Mr.P. Mani Thomas.    Ex.A2 sale deed executed by Mr.George D. Cornelius in favour of Sivakumar proves that Ex.A2 is not executed by the developer.  The opposite party developer executed a sale deed dated 3.5.1995 was purchased by Melani Sabhaney proves that no document is filed to prove the limitation in this case.

7.     The learned counsel for the opposite party contended that during the year 1999 and 2001 the opposite party developer sold all the flats and the respective purchasers are  in possession of their respective  apartments.  The allegation that  on 30.3.2005 one Sivakumar purchased from the flat from the opposite party is absolutely false.   Equally G-3 and G5  are not sold out also utter false.   The complainant has not filed any document to prove the above contention also.  Hence this case is barred by limitation.

8.     Further the contention of the complainant  is that there are various deficiencies committed by the opposite party with regard to Metro water sump and storage tank, Generators, Fire fighting equipments, telephone cables, intercoms and cable television provision and name plates,  boards and post box and defects in the construction namely improper weathering course in the concrete wall and the parapet walls are not properly plastered which results in seepage in rain water in almost all the flats.  Cracks have developed in the concrete decorative slopes and rain water is leaking into all the floors of the flats.   Many cracks have appeared in the overhead tank due to defective construction and poor quality of materials used  and the septic tank is not covered with good quality of concrete slabs and  the flooring around the building is not properly laid.  The complainant appointed one Engineer namely Maruthi Vigneswara Builders to find out the estimate for such rectification of defects as per Ex.A7.  But during the visiting of said rectification of defects either the engineer or appointment of such builders as a Engineer no notice of any kind was given to the opposite party and in the absence of the opposite party the Engineer inspected the property and  gave estimate which is unilateral.   The complainant also has not filed any document to prove such huge amount spent towards repairing the defects.  It is apparently clear that the Engineer report is unilateral and it cannot be accepted.   There is no proof for such claim of Rs.7,44,450/- towards rectification of defects.  Further the contention of the complainant is that due to the defects in construction as well as omission to carry out the work causes great mental agony and the complainant is claiming a sum of Rs.12,00,000/- towards compensation for such deficiency of service and mental agony.  But the complainant has not proved such deficiencies in such manner known to law.  The learned counsel for the opposite party contended that the allegation of defects in the construction and omission to do some works are imaginary.  Till 2001 – 2002 none of the purchasers of the apartment has raised any question regarding the construction or defects in the construction  and all apartments duly sold before 2001.   This complaint is filed only in the year 2007.  This complaint itself is barred by limitation.  Neither the complainants association nor the individual apartment owners has not properly maintained the building.   Equally the  association have no right to prefer Ex.A7 and produce before this forum.  Further the contention of the opposite party is that the allegation of Metro water sump and storage tank, Generators, Fire fighting equipments, telephone cables, intercoms and cable television provision and name plates,  boards and post box and defects in the construction namely improper weathering course in the concrete wall and the parapet walls are not properly plastered which results in seepage in rain water in almost all the flats, Cracks have developed in the concrete decorative slopes and rain water is leaking into all the floors of the flats are imaginary.   There is no such agreement for generator and other things. The complainant carefully not produced the construction agreement in order to suppress the material facts and making improper claim.  Similarly without any information regarding the association claiming approved plan and original documents unsustainable.   The complainant can seek suitable remedy before the Civil Court.  Therefore  complainant is not entitled for any relief as prayed for in the complaint and the points 1 & 2 are answered accordingly. 

                In the result the complaint is dismissed.  No cost.

            Dictated by the President to the Assistant, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 1^st day  of  November  2017.  

 

MEMBER-I                        MEMBER-II                             PRESIDENT.

Complainant’s side documents:

Ex.A1-  3.6.1998   - Copy of Agreement of Sale.

Ex.A2- 30.3.2005  - Copy of Sale deed.

Ex.A3- 21.11.2005         - Copy of Notice.

Ex.A4- 26.11.2005         - Copy of Ack.

Ex.A5-         -       - Copy of Certificate of Registration of Society.

Ex.A6-         -       - Copy of Memorandum and Bye laws.

Ex.A7- 20.12.2005         - Copy of Estimation.

Ex.A8- 20.12.2007         - Copy of Legal notice.

Ex.A9- 19.3.2007  - Copy of reply notice.

Ex.A10-       -       -  3.6.1998  - Copy of Agreement of Sale.

Ex.A2- 30.3.2005  - Copy of Sale deed.

Ex.A3- 21.11.2005         - Copy of Notice.

Ex.A4- 26.11.2005         - Copy of Ack.

Ex.A5-         -       - Copy of Certificate of Registration of Society.

Ex.A6-         -       - Copy of Memorandum and Bye laws.

Ex.A7- 20.12.2005         - Copy of Estimation.

Ex.A8- 20.12.2007         - Copy of Legal notice.

Ex.A9- 19.3.2007  - Copy of reply notice.

Ex.A10-       -       - Copy of Photos.

Ex.A11- 20.3.2017         - Copy of Authorization.

 

Opposite party’s side document: -   

..Nil..

  

MEMBER-I                        MEMBER-II                             PRESIDENT.