BEFORE: HON’BLE MR. SUBHASH CHANDRA, PRESIDING MEMBER HON’BLE DR SADHNA SHANKER, MEMBER For the Appellants Mr Selvin Raja, Advocate For the Respondents Mr Mohit D Ram, Mr Abhinav Parthasarthy And Mr Anubhav Sharma, Advocates ORDER PER MR SUBHASH CHANDRA 1. This First Appeal under Section 51 of the Consumer Protection Act, 2019 (in short, ‘the State Commission’) is directed against the order dated 13.12.2021 of the Tamil Nadu State Consumer Disputes Redressal Commission, Circuit Bench, Madurai (in short, ‘the State Commission’) in CC no.36 of 2018 in disallowing the complaint. 2. In the interest of justice, the delay of 34 days in filing the appeal is condoned. 3. We have heard the learned counsel for the parties and have carefully perused the material on record. 4. The relevant facts of the case, in brief, are that the appellant had approached the respondents to construct a house on Survey 35 /4 (part) and R S No. 35/6 (part) in Thuvariman on plot no.B 05 admeasuring 1485 sq feet for a total consideration of Rs.9,05,080/-. A building agreement dated 02.06.2014 was executed on behalf of the parties as per which the construction was assured to be complete on or before 30.09.2015. The scope of construction included, cost of construction, power back up, water supply, common amenities like road, street light and service tax. A schedule of payment based on various stages of constructions was agreed upon along with the specifications of the materials to be used. The appellant obtained a housing loan from the Canara Bank for an amount of Rs.43.20 lakh on 15.09.2014 which was disbursed on various dates. Vide letter dated 31.08.2015 the possession was offered by the respondent. however, the appellant contends that only 60% of the construction work had been completed. It has also contended that the appellants were required to pay EMI of Rs.45,000/- per month from October 2015 onwards and that the opposite parties ought to have received the final payment of 5% whereas they issued further demand of Rs.3,37,822/- apart from demand for corpus fund, house tax and patta of Rs.65,570/- despite the fact that the construction was not complete as assured on or before 30.09.2015. The appellants did a “Grahapravesh” (house warming ceremony) on 19.02.2016 and thereafter, the respondent did not rectify the defects as pointed out by them. A legal notice was issued on 27.11.2017 which, although received, was not replied to. A complaint was therefore, filed before the State Commission on 28.11.2018. The State Commission ordered appointment of an Advocate Commissioner to inspect the building with a qualified engineer. For some reasons the Advocate Commissioner did not inspect the building and therefore, another Advocate Commissioner was appointed who submitted his report on 29.03.2021. No objection to the report was filed by the parties and the petition was therefore, closed. The State Commission in the impugned order held as under: 20. The complainants agreed in terms No.2 (a) to pay the agreed amount as per schedule and also agreed the payment of time is the essence of contract and payment should be made without demand from the builder. No manuals or special provisions other than specific schedule extra to the account of owner. The rates prescribed by the builder shall be paid on demand or other payment or owner is entitled to carry out any works only after full and final settlement of the builder due and after obtaining due permission from the builder and also complainants specifically agreed for the payment of charges for maintenance whether the house is occupied or remains vacant. The right of possession of the unit only on full payment to the builder. The complainants did not file any application for amendment of the prayer, the complaint was filed with a prayer to direct the opposite parties to complete the construction and removing the inferior quality and redo the same at their own costs. Now the complainants altered the main prayer by substituting the new prayer directing the opposite parties to pay cost of the "Maramathu" work of Rs.8,50,480/- with interest at the rate of 18% per annum. 22. Here the complainants unilaterally proceeded with doing "Maramathu" work now the opposite parties raised objection that they cannot made responsible for the expenses when the complainants alleged that the house kept vacant for a prolonged period without occupation and maintenance. The objection would have some merits there is every possibility of leakage of rain water and other defects noted by the complainants. When the house was kept vacant without proper maintenance work. The commissioner only noted the leakage of water and some other cracks and minor defects but he did not noted any major defects in the building and it requires immediate attention. The allegations raised in the complaint regarding the allotment of place of garden and failed to take place for form association and omitted to handover administration of other things and maintenance of entire house did not relates to the gated community which consists of number of house. The complainants did not approach this commission with clean hands. Therefore they are not entitled for any of the relief prayed in their complaint and answered accordingly for the points No.1 and 2. Memo filed by the counsel for the Opposite parties is rejected. In the result the complaint is dismissed. No Costs. 5. This order is impugned before us on the grounds that the State Commission had wrongly held that the appellant should have unilaterally proceeded with the undertaking of repair works and that the Advocate Commissioner had only noted minor defects which had not been disclosed by the appellants. It was contended that the respondent was liable for deficiency in service in failing to deliver the complete construction of the building on or before 30.09.2015 as agreed and that, based on the photographic evidence, the appellant had no other option but to proceed with the repair work to prevent further damage due to rain. It was contended that the State Commission should have considered the fact that the respondents had accepted the report of the Advocate Commissioner dated 29.03.2021 and therefore could not escape their liability. It was therefore, contended that the respondents were liable to pay the rent of R.30,000/- per month for 28 months from 31.10.2015 till the handing over the possession (October 2015 to February 2018) and therefore, the order of the State Commission to be set aside. 6. It is an admitted position that the possession of the house constructed of which was the subject matter of the builder agreement between the parties had been taken by the appellants and house warming ceremony had also been conducted on 19.02.2016. The report of the Advocate Commissioner indicated only some minor issues relating to on account of house being remained unoccupied for an extended period of time. This report has not highlighted any major structural damage to the house on account of poor workmanship or defects in construction, the liability could be ascribed to respondent. It is evident that the complaint was filed before the State Commission by the appellant herein seeking reimbursement of the repair works which were being attributed to the respondent on the grounds of incomplete works/ improper works. 7. In view of the Advocate Commissioner’s report this contention cannot be accepted. The Advocate Commissioner’s report has also not been contested by the appellant. It is therefore, evident that the repair works were of routine work which cannot be attributed to the respondent, or held to not constitute any deficiency in service as alleged by the appellant qua the respondents. 8. In view of the foregoing discussion and the facts and circumstances of this case, we find no reason to interfere with the order of the State Commission which is a detailed and reasoned order. The appeal is therefore, liable to fail. Accordingly, the First Appeal no.174 of 2022 filed by the appellant is found to be without merit and is accordingly dismissed with no order as to costs. 9. All pending IAs, if any, also stand disposed of by this order. | 
