DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

Udyog Sadan, C-22 & 23, Qutub Institutional Area

(Behind Qutub Hotel), New Delhi-110016

Case No.417/2014

Ms. Richa Jindal

D/o Late Sh. K. C. Jindal

R/o B-7/86/1, DDA Flats,

Safdarjung Enclave,

New Delhi-110001                                                       ….Complainant

Versus

1.      Mrs. Punam Goyal

          W/o Shri Joginder Kumar Goyal

          R/o G-94, Third Floor,

          Saket, New Delhi-110017

2.      M/s J. K. Goyal Estate Developers Pvt. Ltd.

          D-71,  GF, Malviya Nagar, New Delhi

3.      Mr. P. P. Sharma

          S/o Mr. C. B. Sharma

          T-23, Khirki Extension, Malviya Nagar,

          New Delhi                                                  ….Opposite Parties

                                                  Date of Institution      : 10.11.14      Date of Order                 : 21.01.19

Coram:

Sh. R.S. Bagri, President

Ms. Naina Bakshi, Member

Naina Bakshi, Member

ORDER

 Complainant has filed the present complaint against the OPs with the following reliefs:  

“i.      Directing the defendant to carry out remedial and repair work in the offending under water tanks, at his own cost, so as to ensure that there is no seepage to any portion of the complainant’s property;

ii.       Pass a decree awarding damages any compensation of the sum of Rs.10,00,000/- (Rupees Ten lacs a only) in favour of the complainant  and against the defendant;

iii.      Award interest @ 24% per annum from the date of supply till the date of realization in favour of the complainant and against the Opposite Parties in this regard;

iv.      Cost of litigation amounting to Rs.11,000/- in favour of the complainant  and against the Opposite Parties in this regard.”

It is submitted that the complainant needed some space  for her personal use and in search thereof, approached the OP No.1 and agreed to enter an agreement to purchase and the OP No.1 agreed to sell her 50% right in the basement floor measuring about 900 sq. ft. alongwith the car parking space  in the stilt area in the property No. D-258, erected on a plot of land measuring 220 sq. yds. situated at Sarvodaya Enclave, New Delhi vide Sale Deed dated 16.05.13 duly registered as document No. 2566 dated 22.05.13 in the office of Sub -Registrar V-A, New Delhi and since then has been in possession thereof.   At the time of purchase of the said property the OP No.1 assured and represented to the complainant that the property was in good condition and that as such there has never been any seepage problem but after purchasing the said property the complainant, who is an Advocate by profession, spent huge amount of her hard earned money on wood work in the basement for storing and housing her library, books and files and other records. It was utter shock to the complainant, that huge amount of water flooded in the basement through walls, even though there was no rain or other overflow of water outside. Due to said seepage of the water, records and books and furniture belonging to the complainant  were spoiled and the complainant  had to call for the services of some Civil Engineers, who opined that the OP No.2 failed to take necessary precaution while constructing the underground water tanks and basement  at the time of construction and had failed to ensure that no water or seepage came into the basement thereby. The said defect is latent defect, which cannot be detected by a man of ordinary prudence without the services of some expert. The complainant’s practice has been affected adversely, since her clients do not want to come there. There is a crust of fungal  growth  on the affected portion of the walls, wooden  Almirah, book shelf as well as on the law books lying , which after drying and mixing with the surrounding atmosphere affect the complainant and her employees. The doctors suggested that they  continue to inhale fungus, it would aggravate their lungs and may create  asthmatic conditions. It is submitted that the damage to her property has been caused on account of carelessness and negligence on the part of the OP No.1 to OP No.3  since the said persons are responsible for the bad workmanship and/or for non maintenance of their respective underground water tanks and the pipelines leading to and for the same.  It is submitted that their persistent refusal to carry out the requisite repair work in the underground water tanks and for maintaining the same is causing undue hardship and damage to the complainant  and her property. It is submitted that in spite of busy schedule the complainant  made various calls and personal visits but the OPs did not took any step to rectify said problem and have failed to repair the aforesaid underground water tanks and the pipelines leading thereto, whereby a lot of water floods  in the said basement portion belonging to the complainant. It is submitted that the complainant engaged the services of one Mr. C. L. Jindal, and one Mr. R. P. Gupta, Water Proofing, Engineer & Contractors to have the damage through seepage   investigated and assessed. The said engineers started his work of investigation and assessment even in this process of investigation and assessment, the OPs did not cooperate, and did everything possible  within their means to delay and stop the work, and the investigation into the case of seepage. According to the opinion of the said engineer, the damage is being caused by the faulty construction and, inadequate water-proofing and accumulation of water in the adjacent wall of basement. Mr. Gupta also opined that in case, immediate remedial measures are not taken by the OPs, then the seepage is likely to spread to other portion of the complainant’s property and to the very foundation of the building and shall also effect the cantilevers in the walls and pillars of the building, thereby endangering the entire structure of the building itself.  According to the aforesaid Mr. C. L. Jindal, the total estimated cost of the work for remedying the seepage  and damage cause by it to be done in the affected portion of the underground water tank belonging to the OPs is estimated at approx. Rs.3,60,000/-. It is further stated that despite the advice of the above named Mr. Gupta and passage of now about more than six months, the OPs have not taken  any  action as promised by them. In the meanwhile, the damage to the complainant’s property is worsening.  The seepage of the said water has made the entire basement adjoining the under water tanks utterly damp.   The seepage is also emitting bad and obnoxious smell, which offends the complainant , her family members, her employees and her client visiting to the said property. Despite being suffered by the complainant  and his family on account of the above said  seepage to her property the OPs have not bothered to take any remedial measure which they  are under a legal obligation to do, hence this complaint with the above prayers.

In their written statement OP No.1 and OP No.2 have inter-alia stated that the part of the property in question was sold by the OP No.1 to the complainant. The OP No.1 being an individual could not have been made a party in the present complaint, since the part of the property in question was not sold to the complainant in the regular course of business. The OP No.2 should not have been made a party in the present proceeding since the OP No.2 has never dealt with the complainant and there has never been any transaction between the complainant and the OPs.  It is stated that the complaint is not maintainable since the complainant  is not a consumer and the OP No.1 is not a service provider and no service were promised at the time of executing the sale deed as alleged by the complainant . It is submitted that the case as alleged by the complainant  is not a case of unfair trade practice, for the sole reason that the transaction i.e. the sale of basement of the property was made through a registered sale deed thereby making it a sale of immovable property under the Transfer of Property Act.  The OP No.1 is not involved in any kind of trade as alleged by the complainant. It is submitted that one residential building bearing No. D-258 situated at Sarvodaya Enclave was constructed by the OP No.2 sometimes in the year 2010. The OP No.2 sold proportionate share of the basement with some space for parking at the stilt parking to the OP No.1 vide sale deed dated 20.05.11. The OP No.1 sold the aforesaid portion to the complainant  vide sale deed dated 16.05.13 during the period from 20.05.11 to 16.05.13, the OP No.2 did not receive any complaint from the OP No.1 with regard to the property in question since as alleged. There was never any technical fault in the basement i.e. there never was any problem in the said property. The OP No.1 and OP No.2 came to know that the complainant,  after purchasing the aforesaid portion of the basement alongwith the parking area had illegally constructed an added one bathroom, kitchen and room in the basement and slit area of the property and had also put partition alongwith other fittings and fixtures in the stilt area, which is against the prevailing building bye laws. It is submitted that the construction carried out by the complainant, on the face of it, was not only illegally but also dangerous to the existing structure of the property in question. It is apparent that aforesaid construction /additions/alterations carried out by the complainant has caused grave damage to the RCC walls of the basement area, therefore leading to the alleged technical faults. It is submitted that no notice was served on either of the OPs prior to filing of the present complaint, the conduct of the complainant  prima- facie shows that the intention behind filing of the present complaint are perverse, malafide and the same is done with an ulterior motive to extort money from the peace loving and law abiding citizens of this country. It is submitted that the  illegal and irregular changes made by the complainant  to the portion of the property in question were never made at the behest of the OPs as alleged in the complaint. It is further stated that only contract executed between the complainant  and the OP No.1  was a sale deed for the sale of the portion of the property in question  and the complainant  agreed to purchase the said portion after being fully satisfied with the then existing structure. OP No.1 and OP No.2 have prayed for dismissal of the complaint.

OP No.3 has been dropped by the complainant vide order dated 06.11.15.

Complainant  has filed rejoinder to the written of OP No.1 and OP No.2 and stated that the complainant  has only got some wooden work done for storing and housing her library, books and files and other records  as she is an advocate by an profession and the wooden work does not need any alteration or irregular or illegal construction. The OPs in convenience with each other had cheated the complainant  by selling their defaulted property to the complainant  as the seepage is such a problem which can be  detected towards  only not at the time of purchasing. It is stated that the OP No.2 is the company of the husband of the OP No.1 and the OP No.3 is a partner of the company of the husband of the OP No.1.

Complainant has filed her own affidavit in evidence. On the hand, affidavit of Sh. Munish Goyal, Director of OP No.2 has been filed in evidence on behalf of the OPs.

Written arguments have been filed on behalf of the parties.

We have heard the arguments on behalf of the parties and have also gone through the file very carefully.

It is not in dispute that the complainant acquired 50% right in the basement floor measuring about 900 sq. ft. alongwith the car parking space  in the stilt area in the property No. D-258, erected on a plot of land measuring 220 sq. yds. situated at Sarvodaya Enclave, New Delhi vide Sale Deed dated 16.05.13 duly registered as document No. 2566 dated 22.05.13 in the office of Sub -Registrar V-A, New Delhi. The complainant  herself stated in the complaint that the OP No.1 assured to the complainant  that the property was in good condition and as such there was never been any seepage problem.  After purchasing the said property, the complainant , who is an Advocate by profession spent huge amount of her hard earned money on wood work in the basement for storing and housing her library, books and files and other records. The complainant found huge amount of water flooded into the basements through walls. The complainant  requested the OPs to do the needful but no repair/work was done by the OPs.

As stated hereinabove, the averments made by the OPs in the reply that the complainant had undertaken construction herself without taking the OPs into confidence and the complainant was herself responsible for the seepage and other problem etc.

 In view of the above, the complainant purchased the property from the OPs and sale deed was executed.  The complaints relating to sale simplicitor cannot be entertained by a Consumer Forum as the complainant cannot be treated as a ‘consumer’.

The dispute raised by the parties cannot be decided in a summary manner.  Because it has to be decided on merits whether or not the Complainant has changes in the portion due to which the problem of seepage occurred. It has also to be decided on merits whether the OP has infact sold the property in question to the complainant as the same was having seepage problem. Therefore, the parties are required to lead oral as well as documentary evidence which would imply the cross-examination of each other witnesses. Therefore, the appropriate forum for deciding the lis is a civil court and not the consumer forum.

In view of the above discussion, we do not find any merit in the complaint and dismiss it with no order as to costs.

Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations.  Thereafter file be consigned to record room.

Announced on 21.01.19.