Date of Filing     : 18.12.2019

                                                                                                                        Date of Disposal: 28.07.2023

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

THIRUVALLUR

 BEFORE  TMT. Dr.S.M. LATHA MAHESWARI, MA.,ML, Ph.D (Law)                           .…. PRESIDENT

                 THIRU.P.VINODH KUMAR. B.Sc., BL.,                                                               …..MEMBER-I

                 THIRU.P.MURUGAN,M.Com.,ICWA(Inter)., B.L.,                                           ....MEMBER-II

CC. No.147/2022

THIS FRIDAY, THE 28^th DAY OF JULY 2023

1.Mr.P.Saravanaprakash,

    S/o.S.Paneerselvam,

    No.2 F1, Trinity Subiksham Apartments,

    First Cross Street,

    Subbulakshmi Nagar,

    Korattur  North, Chennai 600 076.

    Rep. by his power of attorney agent S.Paneerselvam,

2. S.Paneerselvam,  S/o.Somu,

    F2, First Floor, No.7,

    Shri Lakshmi Apartments,

    Thirumalai Square, Rajiv Nagar,

    Korattur North, Chennai 600 076.                                                  ……Complainants.

                                                                               //Vs//

1.Mr.Natrajan,

    Partner, Trinity Developers Firm,

    W 365, North Main Road,

    Anna Nagar West Extension,

    Chennai -600 101.

2.Mr.Vijaya kumar,

    Partner, Trinity Developers Firm,

   W 365, North Main Road,

   Anna Nagar West Extension, Chennai 101.

3.Mr.C.R.Rafic Peer Mohamed,

    W 365, North Main Road,

    Anna Nagar West Extension,

    Chennai 101.                                                                              ..........Opposite parties.

Counsel for the complainant                                  :   M/s.K.R.Vijayakumar, Advocate.

Counsel for the opposite parties                           :   M/s.A.Sheik Peer, Advocate.

This complaint is coming before us on various dates and finally on 20.07.2023 in the presence of M/s.K.R.Vijayakumar, counsel for the complainant and M/s.A.Sheik Peer, counsel for the opposite parties and upon perusing the documents and evidences of both sides, this Commission delivered the following:

ORDER

PRONOUNCED BY TMT. Dr.S.M. LATHA MAHESWARI,   PRESIDENT.

This complaint has been filed by the complainant u/s 35 of the Consumer Protection Act, 2019 alleging deficiency in service against the opposite parties in the construction work along with a prayer to direct the opposite parties to pay a sum of Rs.42,06,000/- in total towards compensation for the mental agony and hardship caused to the complainant with 18% interest along with cost of the proceedings to the complainants.

Summary of facts culminating into complaint:-

It was the case of the complainants that they had purchased F1 flat from the opposite party firm viz., Trinity Developers Firm which constructed and developed the Trinity Subiksham Apartments in which the opposite parties were partners. As all three opposite parties being partners in the said building firm, it was their duty to rectify the defects pointed out by the complainant in the construction. There was defective plastering before the gate and in front of the compound wall in front of the gate.  Similarly suitable standard and good quality pipes were not fixed to take F1 and S1 waste water into the main drainage and was given a defective connection with substandard pipes resulting in stagnating and flowing of waste water in the common area.  The complainant has to spend substantial amounts of about Rs.25,000/- for rectifying the defects. The opposite parties had failed to inform to the complainants at the time of purchase about the cannel which caused pollution problem. There was defective construction in several parts of the flat and there were deviations from the approved and sanctioned plan. The opposite parties had given lesser parking space of square feet which was lesser than what the opposite parties had promised and assured. The 3^rd opposite party had belatedly handed over the Accounts and he had enjoyed the amount. The complainant emphatically reiterates and had called upon the 3^rd opposite party to send a demand draft for the interest at 15% per annum and the balance amount of Rs.6000/-, since the clarifications of the 3^rd opposite party were not acceptable and not convincing.  There was a considerable difference between the Accounts sent by the complainant and the accounts sent by the 3^rd opposite party.  The 3^rd opposite party and his friend one Abdul Azis of F2 attempted to claim exclusive right over the car parking area and denied to accept it to be a common area which was always used by the complainant and his family as an access way to go to his flat upstairs and he had a key for the same. The opposite parties being partners in the said Trinity Developers Firm and having enjoyed the profits and benefits of the said Trinity Developers Firm, all the opposite parties have a joint responsibility and vicarious liability to resolve the issue and problems of the flat owners. Thus aggrieved by the acts of the opposite parties the present complaint was filed to direct the opposite parties to pay a sum of Rs.42,06,000/- in total towards compensation for the mental agony and hardship caused to the complainant with 18% interest along with cost of the proceedings to the complainants.

The crux of the defence put forth by the opposite parties:-

The opposite parties filed version disputing the complaint allegations contending interalia that the complainants’ averments that they have purchased the flat No.F1 from the Trinity Developers was not factually correct. Inclusion of the 2^nd complainant was totally unnecessary and he has nothing to do with the flat purchased from the firm. The 1^st complainant purchased the flat in the year 2012 and immediately taken possession and occupied flat.  For the purchase of flat in the year 2012, complaint had been filed before this Commission in the year 2019, after seven years and it was numbered in the year 2022.  It was completely barred by limitation as provided Under Section 24(A) of the Consumer Protection Act, which provides only two years.  The alleged complaint against the firm made only on 14.10.2018 there was a gap of six years. Complainants had made bald and baseless allegations as against the firm which sold the residential flat, however, the firm was not made a party. When the firm itself was not party to the proceedings, its partners could not be included as opposite parties. The main allegations and averments as against the 3^rd opposite party are purely private civil transactions among the co-owners of residential apartments and it was no way connected with consumer and service provider complaint as defined in the Act. In such a case the present complaint was not to be entertained before this Commission. For the civil disputes among the flat owners, partners of the firm who sold the flats could not be made liable and their inclusion as opposite parties was not all warranted before this Commission and thus they sought for the dismissal of the complaint.  

On the side of complainant proof affidavit was filed and documents marked as Ex.A1 to Ex.15 was submitted.  On the side of opposite parties proof affidavit was filed but no document was filed on their side.

 Points for consideration:-

1. Whether the complaint as filed before this Commission is maintainable and not hit under section 69 of the Consumer Protection Act 2019 on the ground of limitation?
2. Whether the complaint allegations amounts to deficiency in service on the part of the opposite parties?
3. To what relief the complainant is entitled?

Point No.1:-

On the side of complainant the following documents were filed for proving the complaint allegations;

1. Power of Attorney dated 20.11.2019 was marked as Ex.A1;
2. Sale Deed dated 10.12.2012 was marked as Ex.A2;
3. Construction Agreement dated 03.10.2012 was marked as Ex.A3;
4. Notice to the 3^rd opposite party dated 14.07.2018 was marked as Ex.A4;
5. Reply from the 3^rd opposite party dated 25.07.2018 was marked as Ex.A5;
6. Notice to the 3^rd opposite party dated 10.08.2018 was marked as Ex.A6;
7. Reply from the 3^rd opposite party dated 23.08.2018 was marked as Ex.A7;
8. Notice to the 3^rd opposite party dated 05.09.2018 &02.01.2019 were marked as Ex.A8 & Ex.A9;
9. Complaint to the Korattur Police Station dated 12.11.2018 was marked as Ex.A10;
10. Reply from Tamil Nadu Pollution Control Board dated 21.06.2016 was marked as Ex.A11;
11. Complaint to the Korattur Police Station dated 16.09.2022 was marked as Ex.A12;
12. Notice to the opposite parties dated 10.10.2022 was marked as Ex.A13;
13. Photos of cracks and damages was marked as Ex.A14;
14. Photos of car parking area and locked gates was marked as Ex.A15;

The learned counsel appearing for the complainant argued that though the flat was purchased from the opposite party in 2012 and occupied on 16.12.2012 the flat had defects and that the opposite parties failed to rectify the same.  One of the partner the 3^rd opposite party herein owns a flat who was giving problem for the complainant in the matter of car parking and denied giving access to go to their upstairs.  Further it was also alleged that excess amount was collected from the complainant which has to be refunded.  It is also his case that he has to spend around Rs.25,000/- for rectifying the defects.  The 3^rd opposite party also belatedly after enjoying the money handed over the accounts and thus he sought for the complaint to be allowed as prayed for.

On the other hand, the learned counsel appearing for the opposite party vehemently argued that the complaint is clearly barred by limitation as the flat was purchased in 2012 and the complaint was filed in 2019 after more than six years but got numbered in 2022.  Thus stating that the complaint was not filed in time along with other defences like firm was not made a party to the proceedings and that the alleged dispute with regard to car parking and common space relates to Civil disputes etc, the counsel sought for the complaint to be dismissed.

On perusal of the pleadings and on appreciating the arguments of the complaint additionally on the question of limitation we could see that the complainant had purchased the flat from opposite party firm i.e. Trinity Developers Firm.  However, the Firm was not made a party to the proceedings as rightly pointed out by the opposite party. Whether the opposite parties continues to be the partners of the firms or not is questionable.  Further, even as per complainants’ own version it is admitted that the defects came to know immediately on occupation of the flat in 2012.  In the Cause of action Paragraph of the complaint it is stated that the cause action arose on 16.12.2012 i.e. on the date of purchase and subsequently on 29.12.2012 which is a contradictory statement.  It is argued by complainant’s counsel that the complainant was approaching the opposite party until 02.01.2019 to rectify the defects and to return the amount, the limitation continues.  He also cited a decision rendered by the NCDRC in RP.No.299/2017 in Good Luck Developers Vs Vignesh Shanbhag dated 16.07.2017 in support of his contention. We are of the view that the said decision does not apply to the present case as in that case the defects in the construction came to know to the complainant only belatedly which was not in the present case, wherein the complainant himself admitted that from the time of occupation he 4noted the defects and was asking the opposite parties to rectify the defects.  In the said circumstances the complainant’s arguments without taking any steps to file the complaint from 2012 to 2019 stating that it is a continuous wrong and that no limitation of two years would apply is unacceptable.  Though the case was filed in 2019 it remains pending unnumbered and got numbered only in 2022 which apparently shows that the complainant was not vigilant in enforcing his rights.  If he is really aggrieved by the defects and other acts alleged he would have taken steps to prosecute the complaint in time.  The maximum Vigilantibus non dormientibus jura Subveniunt clearly applies for this case. In the said facts and circumstances we are of the view that the complaint as filed is clearly hit by law of limitation.  Thus we answer the point accordingly.

Point No.2:-

With regard to the merits of the case it is seen that the dispute with regard to car parking space and common space between the flat owners could not be adjudicated before this Commission.  The complainant’s grievance with regard to the same could be adjudicated only before a Civil Court having jurisdiction.  Hence we are not discussing the issue regarding the said alleged deficiencies.

Point No.3:-

As we have held above that the complaint was barred by limitation and not maintainable before this Commission and also the dispute with regard to car parking space, amounts and common area could not be adjudicated before this commission, the complainant is not entitled to any relief in the complaint as prayed for. 

In the result, the complaint is dismissed.  No order as to cost.

Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 28^th day of July 2023.

    Sd/-                                                        Sd/-                                                              Sd/-

MEMBER-II                                        MEMBER-I                                               PRESIDENT

List of document filed by the complainant:-

List of documents filed by the opposite parties:-

Nil

    Sd/-                                                                  Sd/-                                                      Sd/-

MEMBER-II                                                 MEMBER-I                                      PRESIDENT