Date of Filing 20.12.2019

                                                                                                       Date of Disposal: 24.11.2023

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

CC.No.177/2022

THIS FRIDAY, THE 24^th DAY OF NOVEMBER 2023

1.Mr.G.Sriraman,

   S/o.Gopalakrishnan,

2.Mr.G.Sampath kumar,

    S/o.Gopalakrishnan,

Both are residing at Flat No.106, Block “Pride”,

Supreme City, Station view Road,

Thiruvallur Taluk and District.                                                              ......Complainants.

                                                                                      //Vs//

1.Mrs.Srimathi,

   The Managing Partner, Supreme Homes,

   Station View Road, M.V. Nagar,

   Thiruvallur 602 002.

2.The Maintenance Manager,

    Supreme Homes, (Supreme City),

    Station View Road, M.V. Nagar,

    Thiruvallur 602 002.

                                                                                                   Date of filing: 29.09.2021.

                                                                                               Date of disposal: 24.11.2023

CC.No.178/2022

THIS FRIDAY, THE 24^th DAY OF NOVEMBER 2023

1.Mr.C.Manoharan,

S/o.Chandrasekar,

2.H.B.Nethravathi,

    W/o.Mahonaran,

Both are residing at Flat No.210, Block “Pride”,

Supreme City, Station view Road,

Thiruvallur Taluk and District.                                                              ......Complainants.

                                                                                      //Vs//

1.Mrs.Srimathi,

   The Managing Partner, Supreme Homes,

   Station View Road, M.V. Nagar,

   Thiruvallur 602 002.

2.The Maintenance Manager,

    Supreme Homes, (Supreme City),

    Station View Road, M.V. Nagar,

    Thiruvallur 602 002.                                                                       …..Opposite parties.

Counsel for the complainants                          :     Mr.T.Balasubramaniam, Advocate.

Counsel for the opposite parties                     :     Dr.L.Thanigaivel, Advocate.

Both complaints coming before us on various dates and finally on 09.11.2023 in the presence of Mr.T.Balasubramaniam counsels for the complainants and  Dr.L.Thanigaivel counsels for the opposite parties  and upon perusing the documents and evidences of both sides in both cases this Commission delivered the following:

COMMON ORDER

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

1. Both complaints had been filed by the complainant u/s 35 of the Consumer Protection Act, 2019 alleging deficiency in service against the opposite parties with regard to construction made by them along with a prayer in both complaints to direct the opposite parties to fulfil the requirements as per terms and conditions of the Agreement, to pay a sum of Rs.14,00,000/- towards compensation for the deficiency in service and unfair trade practice, to pay a sum of Rs.5,00,000/- towards compensation for the mental agony and hardship caused to the complainants along with cost of Rs.25,000/- to the complainants.

2. As the issue involved in both cases similar in nature relating to same construction of flats and purchase (i.e. Supreme Homes) by complainants, this Commission decided to hear both complaints together and to issue a common Order.

Summary of facts culminating into complaint in CC.No.177/2022:-

3. Case of the complainants was that they agreed to purchase a flat No.106 and entered into Sale Agreement for a fixed sale consideration of Rs.25,47,954/- with the 1^st opposite party.  By paying Rs.3,50,000/- in advance on 21.04.2014 and on 15.05.2014 the complainants had paid Rs.23,10,000/- and on 23.05.2014 and 24.05.2014 the complainants paid an amount of Rs.2,37,594/-.  Thus total Sale Consideration amount and construction amount had been paid even before the execution of Sale Deed.  On 07.07.2014 only on the compulsion of the complainants the 1^st opposite party had come forward to execute the Sale Deed on the file of Sub Registrar Office, Thiruvallur and registered the sale vide document No.7879/2014. It was submitted that both opposite parties not handed over the possession of the flat in time even after receiving full amount and did not allow the complainants to inspect the flat.  The 2^nd opposite party did not complete the work in time.  Further they did not use proper and good raw materials for the construction. The opposite parties had completed the flat and handed over possession on 01.05.2015 without any proper entrance, play ground and other amenities as provided in their schemes.  Within two years the complainants have found some air cracks and fungus in the building.   The opposite parties had not provided proper road to the complainants for their entry and out.  Further it was submitted that both opposite parties were allowing some unknown vehicles like Lorry, Car, Auto, etc., to park inside the building premises and the opposite parties did not consider cleaning the bushes in the premises. It was submitted that as per the agreement the apartment was a fully gated community, having proper road, maintaining the vacant site day by day providing park area etc., but they did not follow the terms and conditions in the agreement. The drainage pipeline was leaking and was never rectified by the maintenance persons. Thus aggrieved by the act of the opposite parties/Builders the present complaint was filed to direct the opposite parties to pay a sum of Rs.14,00,000/- towards compensation for the deficiency in service and unfair trade practice alleged to have committed by them and to pay a sum of Rs.5,00,000/- towards compensation for the mental agony and hardship caused to the complainant along with cost of Rs.25,000/- towards litigation expenses.

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

4. The opposite parties filed version disputing the complaint allegations contending interalia that the first floor apartment was sold at a very special offer price and the complainants had agreed to purchase the same and therefore they had entered into Construction Agreement on 07.07.2014 with the opposite parties. All the payments towards sale consideration were paid by the complainants as per clause 2 to 6 of the construction agreement.  Further the 1^st opposite party had completed the construction as per clause 13 & 14 of the construction agreement and therefore there was no violation that had taken place in respect of any of the terms and conditions mentioned in the construction agreement. The 1^st opposite party utilized raw materials of good quality for the construction and had adhered to the specifications mutually agreed as for as the raw materials for the construction. The 1^st opposite party as a goodwill gesture has provided amenities such as CCTV camera, Multi-purpose Hall and children play area upon completion of Block-I stage though these were mutually agreed to be provided only upon completion of the entire project.  It was further submitted that the vehicles belonging to the staff and flat owners and their visitors were permitted inside the apartment by the security staff.  Moreover it does not prevent ingress and egress of the complainants in any way.  It was absolutely imaginary to state that some unknown persons were coming inside and illegal activities were carried out in the apartment.  The apartment building was well maintained and the vacant side meant for future block was also adequately maintained and therefore the opposite parties had complied with all the terms and conditions of the construction agreement.  It was further submitted that the vacant site was being maintained with periodical clearing of bushes.  Park was never agreed in the construction agreement and only children play park was committed and that too to be provided only upon completion of the entire project. But children play area was very much provided and moreover such ‘Children Play Area’ was provided in a landscaped park with proper and separate compound wall and fencing with children’s play equipment, planter boxes, shuttle court and sitting arrangements.  The flooring joineries such as windows and doors, pipelines, electrical, carpentry, plumbing and sanitary work and the entire flat was finished using only quality raw materials and as agreed in the construction agreement and handed over the possession and the same was taken by the complainants with utmost satisfaction.   The opposite parties had sent a reply notice clarifying all the allegations and averments of the complainant by a letter dated 22.10.2019. It was submitted that maintenance and security were being taken care of by the maintenance staff.  The complainant have violated clause 10(h), 23,24 & 25 of the construction agreement by not making the payment of maintenance charge regularly and thus has no locus standi to complain about maintenance and in fact they have been making false allegations and make it an excuse for not paying the maintenance charge.  There is no dereliction of duty as all the terms and conditions of the construction agreement were honoured by the opposite parties.  Thus the opposite parties sought for the dismissal of the complaint.

Summary of facts culminating into complaint in CC.No.178/2022:-

5. Case of the complainant was that the they had agreed to purchase the flat No.210 vide sale agreement for the fixed sale consideration of Rs.30,48,943/- with the 1^st opposite party by receiving Rs.2,50,000/- in advance and the balance amount was transferred to their Bank Account on various date.  The total sale consideration amount and construction amount has been paid in advance, a mere small amount of Rs.1,25,000/- was kept pending before the execution of sale deed.  The opposite parties had agreed to pay the interest for the amount paid by the complainant until handing the possession.  The complainants had paid the full amount of sale consideration and paid the full amount as per the terms and conditions without causing delay but the opposite parties handed over the possession of flat No.210 to the complainants on 01.05.2015 only. The opposite parties had agreed to provide proper entrance, play ground and other amenities but they did not fulfil the work and handed over the possession on 01.05.2015.  After two years the complainants found some air cracks and fungus in the building.  The opposite parties did not provide proper road, R.O. softener, Compound wall with appropriate gates, CCTV, Multipurpose Hall, Convenience, Stores, Gym, Indoor games, Children play area. It was submitted that the opposite parties were allowing some unknown vehicles like Lorry, Car, Auto, etc., to park inside the building Premises and further they did not consider to clean the bushes in the premises. Unknown persons were coming inside and doing their illegal works. There was no proper safety to the flat owners and any protection.  The complainants living in building premises put to serious health infections. The opposite parties did not follow the agreement as per the terms and conditions.  Further the tiles not laid in a proper method. The complainants reported the same to the opposite parties several times but they did not made any response. Thus aggrieved by the act of the opposite parties the present complaint was filed to direct them to fulfil the requirements as per the terms and conditions mentioned in the agreement dated 04.11.2013 and to pay a sum of Rs.14,00,000/- towards compensation for the deficiency in service and unfair trade practice on the part of the opposite parties and to pay a sum of Rs.5,00,000/- towards compensation for the mental agony and hardship caused to the complainants along with cost of Rs.25,000/- to the complainants.

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

6. Opposite parties disputing the complaint allegations submitted that there was no such posting called Maintenance Manager Supreme Homes, supreme city as mentioned in the complaint and the 2^nd opposite party was an unnecessary party in the complaint. There was no dereliction or deficiency in extending service and all the terms of Construction Agreement were absolutely honoured. The complainants had agreed to make payment towards construction cost as per clause Nos.2 to 6 of the construction agreement but they had not paid any extra payment.  Further the 1^st opposite party had completed the construction and handed over the physical possession of the flat to the complainants as per clause 14 of the construction agreement.  It was further submitted that only after five years of purchase they have come up with false allegations with an intention to extract money from the 1^st opposite party by resorting to unlawful methods.    The complainants and their Bank ICICI were fully satisfied while taking possession of the flat in all respects including the quality of construction as per clause 23 and 33 of the construction agreement.  Vide clause 28 the complainants may form an Association with other purchaser to attend collectively to the common amenities and for joint maintenance of the property and further they had agreed vide clause 10(x) that the 1^st opposite party would not be responsible for the formation of residents association for the purchasers of the flats.  Therefore there is no violation that has taken place in respect of any of the terms and conditions mentioned in the construction agreement. The 1^st opposite party as a goodwill gesture, has provided amenities such as CCTV camera, multi-purpose hall and children play area upon completion of Block-1 itself though these amenities were mutually agreed to be provided only upon completion of the entire project.   The complainants agreed for such arrangement and therefore they have no locus standi to make such complaint.  All the electrical works including switches, cables etc provided by the 1^st opposite party were of high quality and as per the agreed terms of the construction agreement. The opposite parties had adequately provided all facilities including road access and the vacant site meant for the future blocks which were adequately maintained. The complainants could not have any locus standi to make such complaints after a period of about several years after taking possession.  Their legal notice dated 10.10.2019 was replied vide reply notice dated 31.10.2019 point wise only based on actual facts and quoting the specific clauses in the constriction agreement and there was absolutely no basis for claiming any compensation which has no merit at all. It was submitted that the case of the complainants were hopelessly barred by limitation and to be dismissed in limini. The complainants should invoke section 38(2)(c) of the Consumer Protection Act 2019 or section (1)(c) of the Consumer Protection Act 1986 before filing the present petition which was a mandatory one.  Thus there is no deficiency in service as alleged by the complainants and in toto the complaint is liable to be dismissed.

7. On the side of complainants in CC.No.177/2022 proof affidavit was filed and documents marked as Ex.A1 to Ex A7 were submitted. On the side of opposite parties proof affidavit was filed and document marked as Ex.B1 was submitted.

8. On the side of complainants in CC.No.178/2022 proof affidavit was filed and documents marked as Ex.A1 to Ex A7 were submitted. On the side of opposite parties proof affidavit was filed and document marked as Ex.B1 was submitted.

Points for consideration:-

1. Whether the complaint as filed before this Commission was hit by limitation and whether the issue as to Limitation to be tried as a preliminary issue?
2. Whether the complaint allegations has been successfully proved by the complainant?
3. If so, to what reliefs the complainant is entitled?

Point No.1:-

The following documents were filed on the side of complainants in support of their contentions in CC.No.177/2022;

1. Sale Deed dated 07.07.2014 was marked as Ex.A1;
2. Construction Agreement was marked as Ex.A2;
3. Representation letter dated 16.11.2015 was marked as Ex.A3;
4. Possession letter dated 01.05.2015 was marked as Ex.A4;
5. Legal notice issued by the complainants to the opposite parties dated 05.10.2019 was marked as Ex.A5;
6. Reply notice issued by the opposite parties to the complainants dated 22.10.2019 was marked as Ex.A6;
7. Photos and CD was marked as Ex.A7l

On the side of opposite parties the following documents were filed in proof of their defence;

8. Approved plan drawing 1/6 was marked as Ex.B1;

The following documents were filed on the side of complainants in support of their contentions in CC.No.178/2022;

1. Sale Deed was marked as Ex.A1;
10. Construction Agreement 04.11.2013 was marked as Ex.A2;
11. Agreement for sale of undivided share of land dated 04.11.2013 was marked as Ex.A3;
12. Possession letter dated 01.05.2015 was marked as Ex.A4;
13. Letter issued by the opposite parties to complainants to make payment of arrears of maintenance related charges dated 26.08.2019 was marked as Ex.A5;
14. Legal notice issued by the complainants to the opposite parties dated 05.10.2019 was marked as Ex.A6;
15. Reply notice issued by the opposite parties to the complainants dated 22.10.2019 was marked as Ex.A7;

On the side of opposite parties the following documents were filed in proof of their defence;

16. Approved plan drawing 1/6 was marked as Ex.B1;

9. Being question of law and raised by the opposite parties strenuously, this Commission decided to discuss the issue with regard to limitation to under section 69 of the CP Act 2019 as a preliminary issue. 

10. Heard both learned counsel appearing for the complainants and opposite parties in an extensive manner. 

11. It was argued by the learned counsel appearing for the complainants that the opposite parties had sold the respective flats Nos.106 and 210 to the complainants in CC.No.177/2022 & CC.No.178/2022.  It is the common argument that the flats were taken possession in 2015 and that the handing over possession letter was also issued by the opposite parties in proof of the same.  However, within two years of taking possession of the flats various defects were found and legal notices were issued to the opposite parties and as there was no rectification done by the opposite parties, the complainants had come on with the present complaint.  Advocate Commissioner’s report was also relied upon by the complainants in proof of the same.  Thus they sought for the complaint to be allowed.  On the point of limitation, it was stated by him that they had filed CMP.No.18/2021in CC.No.177/2022 which has been allowed and hence he argued that the complaint was not hit by limitation.

12. On the other hand, the learned counsel appearing for the opposite parties strongly objected the filing of complaint in 2019 stating that the complaint was filed beyond the period of two years and hence could not be taken on file. On merits he had submitted an extensive argument by way of tabular column providing the allegations raised by the complainants and the reply given by the opposite parties for the same.  It is also argued by him that the physical possession of the flat was handed over as per clause 13 & 14 of the construction agreement dated 07.07.2014 and that the complainants took possession after several times inspecting the property.  It is also submitted that as per the terms and specifications provided in the construction agreement the flats were constructed and the amenities were provided to the complainants.  The apartment building was well maintained and the allegation that the vacant site was not maintained and the park area was provided at the fag end of the property was denied as only children play area was provided as per the agreement.  He also denied that the company was not maintaining the building and thus allegations no dereliction of duty on the part of the opposite parties sought for dismissal of complaint.

13. The Uttar Pradesh State Consumer Disputes Commission by a recent judgment in the case of Balrampur Nursing Home vs. Shri Dhokhai in Revision No.19 of 2022 decided on 20.05.2022, while allowing a revision petition has held that as per the provisions contained in S. 69 of the Consumer Protection Act 2019, it is imperative for the District Commission to decide the preliminary issue as to maintainability of the complaint before deciding the complaint on merits. Hence, we decided to discuss the issue of limitation as preliminary issue.

            14. The factum of entering into construction agreement dated 07.07.2014 and handing over possession on 01.05.2015 was not disputed by either parties.  It is the specific pleading of the complainants that soon after they took possession on 01.05.2015 the flats were with defects, incomplete and without proper entrance, playground and other amenities provided in the scheme. It has been stated in the complaint as follows

“Within two years the complainants have found that some air cracks and fungus in the building. The 1^st and 2^nd opposite parties have not provided the proper road to the complainants for their entry and out.  Further the complainants submit that both ops are allowing some unknown vehicles like Lorry, Car, Auto etc., to park inside the premises………..”

15. The above pleadings by the complainants themselves make its abundantly clear that the complainants soon after taking possession on 01.05.2015 had come to know about the defects in the building and that the amenities were not provided to them as per the agreed terms.  It is seen that the legal notices were issued only in the year 05.10.2019 and 10.10.2019 respectively.  The complaint in CC.No.177/2022 was filed on 20.12.2019 and the complaint in CC.No.178/2022 was filed on 29.09.2021.  The complaint in CC.No.177/2022 and 178/2022 were returned by this Commission’s Predecessors seeking clarification on the ground of limitation under section 69 of the Consumer Protection Act 2019.  However, CMP.No.18/2021 was filed in CC.No.177/2022 only to condone the delay in representation of 528 days.  No petitions to condone the delay in filing the complaints were filed by the complainants in CC.No.178/2022.  “Date of knowledge” assumes importance in deciding the issue of limitation.  In the present complaints the pleadings of the complainants were clear to the effect that even at the time of taking possession on 01.05.2015 the amenities as promised were not provided and that within two years they noted several defects like cracks.  The complainants however, did not file any piece of evidence to show that they approached the opposite parties before issuance of legal notices for rectification of the defects etc. In CC.No.178/2022 this Commission’s Predecessors had returned the complaint stating that the complaint was not filed within the limitation period for which the complainant had represented the complaint stating that as per the reply notice the complaint was filed in time and maintainable.  For the said reply this Commission’s Predecessors had again returned the complaint stating that “Reply notice will not save the limitation period.  Submit this complaint along with delay excuse petition under section 69 of the Consumer Protection Act 2019”.  However, no condone delay petition was even thereafter filed by the complainants to condone the delay in filing the complaints. The complaints were taken on file and notices issued to the parties as the period from filing was more than 21 days of filing in accordance with the provisions of Consumer Protection Act 2019 provided under section 36(2). 

16. Thus it is clearly established that both complaints were filed beyond the prescribed period of two years limitation from the Date of knowledge i.e. cause of action.  The fact that even after the complaints returned from filing delay condonation petition, the complainants did not file any delay condonation petition under section 69 of Consumer Protection Act has to be taken note off. In such facts and circumstances in the absence of any petition to condone the delay in filing the complaints this Commission holds that the complaints were filed beyond the period of limitation.  The contention by the complainants that the date of knowledge has to be construed only from 2019 could not be accepted.  Thus we answer the point accordingly holding that both complaints as filed before this Commission was hit by issue of limitation and hence could not be dealt with. 

Point No.2&3:-

17. As we have held above that the complaints were not maintainable before this Commission we did not go into the merits of the complaints and left it un-discussed to be decided by any other appropriate Forum. Thus the complainants are not entitled to any relief from these complaints. 

In the result, the complaints are 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 24^th day of November 2023.

        Sd/-                                                                                                                  Sd/-

 MEMBER-I                                                                                                      PRESIDENT

List of document filed by the complainant in CC.No.177/2022:-

List of documents filed by the opposite parties:-

Court document:-

List of documents filed by the complainants in CC.No.178/2022:-

List of document filed by the opposite parties:-

Court document in CC.No.178/2022:-

     Sd/-                                                                                                                    Sd/-

MEMBER-I                                                                                                      PRESIDENT