IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Saturday the 19thday of February, 2022
Filed on 02.12.2020
Present
1. Sri.S.SanthoshKumar BSc.,LL.B (President )
2.Smt.P.RSholy, B.A., LLB (Member)
In
CC/No.276/2020
between
Complainant:- Opposite party:-
1. Sri. R. Suresh Babu 1. Sri. P.C.Cherian
Palathara Venice Apartment Managing Partner
Aroor Muri, Aroor Village M/s Palathara Builders
Cherthala Taluk, Venice Apartments,Door No.10/318
Pin. 688534 Near Lakeshore Hosptial,
Nettoor.P.O, Ernakulam.
2. Sri. Anilkumar (Exparte)
=do= =do=
3. Sri. Nidheesh Sadasivan
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4. Sri. Rakesh.G
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5. Sri. Santhoshkumar
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6. Sri. M.Udayan
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7. P.K.Baby Satheesh
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8. Sri. Reghunathan.C.S
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9. Smt. Usha Mohan
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(Adv. T.K.Haribalan)
O R D E R
SMT.P.R SHOLY (MEMBER)
This is a consumer complaint filed under Sec.12 of Consumer Protection Act,1986.
1. Material averments briefly discussed are as follows:-
On seeing the brochure of the 1st opposite party and believing its contents regarding the sale of apartments in the property at Aroor Village the complainants had purchased apartments for their choice by virtue of registered sale deeds from 1st opposite party by paying legally entitled consideration in the year 2014.
At the time of purchasing the apartments the amenities as made believe in the brochure such as Round clock security, Roof top conference hall, Gymnasium, Security room, Recreation area, Well planned drainage system, Broadband internet connectivity, Barbeque counter, Intercom with security etc were not provided by the opposite party. Moreover that the opposite party did not take any steps to remove the leakage of building found at the beginning in all apartments, maintain generator, working of generator, painting of staircase handles, connecting filter to the tank collecting ground water, availing health club, ladder to the ground water tank, installed enclosure to the sewage treatment plant, laying tiles to water tank, room facility to security, laying tiles to common space in the middle of A-B apartments concrete plastering in front portion of gate, inspecting AMC to STP, inspecting AMC of the lift and fire equipments, constructing the outside parking area, installed waste water management system, installed incinator, placing additional rainwater gutter,covering the pipelines on terrace, placing lightning arrestor properly, replacing the broken cover of a drainage tank etc.
Furthermore, it was not removed the overhead electric post which is standing dilapidated condition beside the building on eastern portion even though the complaint requested several times. Accordingly the opposite party made negligence and deficiency as not providing common amenities to the apartments of the complainants. Apart from that the opposite party did not formed the association includes the owners of apartments. Besides that the complainants were done maintenance of the common area of the apartments including 3 flats unsold by the opposite party. Though on several times the complainants demanded the contribution of maintenance charge from opposite party, the same was not paid. On the contrary on 14/09/2018 the opposite party sent a letter to the complainants intimating his non-responsibility regarding maintenance of flats after 4 years from its sale among other untenable allegations against the complainants.
On 19/12/2019 the complainants sent a lawyers notice to opposite party inviting immediate attention on the above said matter, but the same was returned with endorsement addressee not available. The acts of the opposite party are highly arbitrary and against the condition as stipulated in the brochure which amounts to gross deficiency in service. The acts of the opposite party caused intolerable mental agony and other hardships to the complainants. Hence the complaint is filed for giving a direction to the opposite part to render proper service to the complainants for enjoying the common amenities and formation of residence association includes the owners of apartments and for paying the contribution of opposite party in the maintenance charge which the complainants had been paid for the same in the common area of the flat.
Notice issued to the opposite party from the Commission returned with endorsement ‘addressee left’ on the first hearing date. There after one more notice issued to the opposite party and that also returned with same endorsement. Hence the opposite party declared exparte since he was called absent.
Thereafter the complainants filed a Commission application and as per order in the said application (IA No.377/21) the Commissioner filed report on 20/12/2021.
2. The points to be raised for consideration are:-
1.Whether there is any deficiency in service on the part of opposite party?
2. Whether the complainants are entitled to get reliefs as sought for?
3. Reliefs and cost?
3. Point No.1 and 2:-
8th complainant filed an affidavit in tune with the complaint and got marked Ext.A1 to A6 and Ext.C1. The counsel appearing for the complainants advanced arguments.
The complainants case is that they had purchased apartments from opposite party in the year 2014 as per Ext.A5 series sale deeds on believing the amenities offered in the Ext.A4 brochure. But after purchasing the flats from the beginning itself the opposite party did not cared to look after its maintenance as well as initiated for the amenities offered in the brochure even after several request made by the complainants. The complainants explained some of the defects and drawbacks happened in the building and its surroundings and in the meantime they had taken out a commission for ascertaining the same and the report filed by the commissioner is marked as Ext.C1. Report including the photographs corroborates the pleadings of the complainants regarding the defects occurred in the flats. It is also to be noted that the commissioner visited scheduled building after giving intimation to both parties in which the registered notice issued to opposite party was returned to the sender with endorsement “addressee left”
In the above circumstance the unchallenged complaint, chief affidavit, Ext A1 to A6 and Ext C1 would establishes the case of the complainants and thereby we are of the opinion that the opposite party is committed deficiency in service towards the complainants pertaining to provide amenities as offered in Ext A4 and as contented in the complaint. Hence the opposite party is held liable.
As the sale deeds executed regarding the flats are in the year 2014, when arise question of limitation the learned counsel appearing for the complainants submitted rulings of Hon’ble Supreme Court and High Court of Kerala for its clarification. Such as
1. Samrudhi Co –operative Society Ltd. Vs. Mumbai Mahalakshmi Construction Pvt. Ltd. 2022 ico 64.
2. National Insurance Co Ltd Vs. M/s Hareshwar Enterprise (P) (Civil Appeal No. 7033 of 2009).
3. The Regional Manager, M/s Indusinad bank. Vs. IndusInd Bank & Anr Vs. State of Kerala & Others.
In Samrudhi Co-operative Society Ltd. Vs. Mumbai Mahalaxmi Construction Pvt. Ltd. (2022 ICO 64) the Hon’ble Supreme Court holding the view that, the term continuous wrong under S.22 of Limitation Act 1963 and S.24 A of Consumer Protection Act, 1986- Defined- A continuing wrong occurs when a party continuously breaches an obligation imposed by law or agreements.
In National Insurance Co Ltd Vs. M/s Hareshwar Enterprise (P) (Civil Appeal No. 7033 of 2009) the Hon’ble Supreme court observed that the cause of action will remain flexible to be gathered from the bundle of facts arising in each case.
In The Regional Manager, M/s Indusinad bank. Vs. IndusInd Bank & Anr Vs. State of Kerala & Others. The Hon’ble High Court of Kerala dismissed a Writ Petition filed before the court challenging the finding of continuous cause of action in connection with limitation, observing the decisions of umpteen number of cases of Hon’ble Supreme Court of India with regard to the said issue. Bearing in mind all the above finding of our Apex courts, that cloud has cleared and hence we find that the complaint is liable to be allowed.
3. Point No. 3:-
In the result complaint stands allowed in part.
A) Opposite party is directed to render proper service to the apartments owned by the complainants as claimed in the complaint within one month of receipt of copy of this order.
B) Opposite party is directed to form residence association including owners of apartments within one month of receipt of this order.
C) Opposite party is liable to pay the contribution of maintenance charge incurred by the complainant from 2015 onwards in the common area of the flat and opposite party is directed to pay the same to the complainants.
D) Complainants are entitled Rs.10,000/- as cost of the proceedings from the opposite party.
The order shall be complied within one month from the date of receipt of this order.
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 19th day of February, 2022.
Sd/-Smt. Sholy.P.R(Member)
Sd/-Sri.S.Santhosh Kumar(President)
Appendix:-Evidence of the complainant:-
Ext.A1 - Copy of Advocate Notice dtd. 19-12-2019
Ext.2 - Postal Receipt
Ext.A3 - Registered Notice
Ext.A4 - Brochure
Ext.A5 series - Deeds
Ext.A6 - Statement dtd 10/1/2022
Ext.C1 - Commission Report
Evidence of the opposite parties:- NiL
///True Copy ///
To
Complainant/Oppo. party/S.F.
By Order
Assistant Registrar
Typed by:- Sa/-
Compared by:-
