SMT. RAVI SUSHA : PRESIDENT
Complainant filed this complaint U/S 12 of the Consumer Protection Act 1986 for getting an order directing opposite parties to pay Rs.149,793/- towards the non completion of the construction within the specified time, Rs. 20,898/- towards loss on the registration charge, Rs.81,000/- towards incomplete work and Rs.1,50,000/- as cost and compensation to the complainant.
The fact of the complaint are that the complainant is working in Merchant Navy. As per advertisement of the OPs that the first residential building in Kerala registered for Green Building certification, attracted by the complainant booked an apartment for himself and family for residential purpose. An agreement was executed between the complainant and 1st OP on 29/3/2010, and as per the terms and conditions the complainant has to pay an amount of Rs.20,40,001/- towards the construction and the Ops agreed to construct an apartment No.2D in the 3rd floor in the building. The completion period of construction was 24 months from the date of agreement ie on 29/3/2012, but the construction was not completed as promised. The registration of the building was done on 25/5/2016 ie, 49 months after the agreed period and the entire sale consideration was paid by the complainant to Ops as per the terms of the sale agreement within the prescribed period. At that time also the construction was not fully completed. He has fixed house warming ceremony of 25/10/2016 , but the construction was not completed within the stipulated time but the ceremony was conducted on 25/10/16. Several inconveniences and hardships were caused to the complainant due to the incomplete construction. As per the builders agreement the Ops have agreed to do several matters which were in connection with the construction of the building. But they have not complied with the same. In the schedule B of the Builders agreement, it was specified that 1 light point will be fixed in the balcony. But that was not done by the Ops. The light assembly in balcony would cost about Rs.4000/-, the bathroom ducts has been left open with grill and concrete surface, which acts as breeding ground for mosquitoes and whenever rains it acts as bird shelter. As it caused great inconvenience and complainant has fixed windows for bathroom ducts. To make it complete tiles must be affixed and it will cost up to Rs.28,000/-. Ops have promoted sale on the basis of 1% reduction in registration charge as it’s a Green building. But so far they have not complied with many of the green building norms and the complainant loss the 1% discount ie Rs.20,898/-. The construction of the apartment lacks quality and there are several defects and damages in the building. The bedroom walls have dampness and the coating s getting peeled off. For curing the defect of the apartment several works have to done and its approximate cost is Rs.25,000/-. The builders agreement also includes a washing machine, which will cost Rs.24,000, but it was not given by the Ops. The car parking area on the basement has not plastered and has rough concrete corrugation all over the area . The complainant informed his difficulties to the OPs , but they were not ready to do plastering for the area. The total cost of plastering and painting will be Rs.8,00,000/- . As per the builders agreement in the event the builder not completing the construction in the stipulated period, the builders agree to pay a rent of Rs.3/- per Sq/Ft per month. Complainant calculated the said amount as Rs.1,49,793/-. The complainant has sent several e mails to the Ops to comply the terms and conditions as per the sale agreement. But the OPs has send replies with false allegations. The acts of Ops amounts to deficiency of service and unfair trade practice. Hence this complaint.
Opposite parties 1&2 , in their joint version admitted that an agreement has been executed between parties wherein the terms and conditions are incorporated. OPs stated that the 2nd OP is the manager under the 1st OP and he has no personal liability and no order can be passed against 2nd OP. OPs further submitted that due to unforeseen circumstances, delay is caused in getting the departmental sanction. This aspect has been mutually discussed and orally decided to settle the issue as the earliest, which factum is known to the complainant also. Some delay is caused in completing the work of upper floors, which is beyond the control of OPs, which also caused on account of the obstruction caused by the complainant and his association from entering into the premises and also the construction work, which ultimately resulted delay in completing the construction work of the apartment. No such alleged work is necessary or left in completed as alleged by the complainant in the complaint. There is no agreement to do the same nor agreed to be done by way of mutual understanding between parties. OPs denied that complainant sustained loss of 1% discount in the registration charges. The complainant is not entitled to get the proposed discount from the OPs and is supposed to get the same from the state government. OPs further denied that the construction of the apartment lacks quality and several defects and damages in the building and the OPs did not agree to give washing machine but agreed to provide electrical point for washing machine. OPs further submitted that the amount claimed as Rs.8 lakhs towards the cost of plastering and painting at car parking area is not at all required to be paid by the Ops. The non-completion of the apartment as per agreement is not on account of the delay adopted by the OPs, but due to the delay in getting the departmental sanction, the panchayath and other departments delayed in sanctioning the approval. So the OPs are not entitled to pay claim Rs.149793/- as alleged by complainant. Ops further submitted that, under these circumstances, OPs 1&2 were not all deficient in rendering service nor they were liable to pay any compensation to the complainant.
During the pendency of the complaint, complainant has filed IA to appoint an expert to inspect the site and to file report. After considering the objection of OPs, the petition was allowed and one Er.Sanilan E.K, Executive Engineer (Rtd) LSGD Govt. of Kerala was appointed as expert and after inspecting the premises of the complainant’s apartment in the presence of complainant and both OPs, the expert has filed report with photographs.
The complainant, in support of his case, filed his affidavit by way of evidence and produced documents Exts.A1 to A6 and Ext.C1 for proving his case. Ext.A1 is the agreement executed between complainant and 1st OP dtd.23/3/2010, Ext.A2 , the Brochure of the Apartment, Ext.A3 the photos(marked with objection). Ext.A4 email communications between parties. Ext.A5 agreement of sale executed between 1st OP and complainant dtd.29/3/2010. Ext.A6 Deed of Absolute sale dtd. 25/5/2016. Ext.C1 the expert commission report.
OPs 1&2 in support of their case, submitted the affidavit of 1st OP Suresh Babu Proprietor of Nest Apartment and submitted documents 5 in Nos. for proving their contentions. Exts.B1&B2 are orders in IA NO.1598/2019 and IA.No.2412/19 in OS 211/2019 of Munsiff Court Kannur. Ext.B3 order of Hon’ble High Court in WP© No.10253/2013,Ext.B4 sale deed executed between parties and Ext.B5 order of Hon’ble High Court in WP© No.16256/2013.
After that the learned counsel of complainant and OPs filed written argument notes and also placed oral submissions. We have gone through the evidence and records of the case and also submissions of both learned counsels.
The counsel for the complainant submitted that, the complainant being attracted the advertisement of the OPs that the first residential building in Kerala registered for Green Building certification, applied for a flat for himself and family for residential purpose. He further submitted that as per agreement,Ext.A1 dtd.23/3/2010, the construction of the residential was likely to be completed within 24 months from the date of signing of Ext.A1. He further submitted that though a sum of Rs,20,40,001/- has been paid by the complainant, the registration of the building was done only on 25/5/2016 ie after 49 months after the agreed period. It is also submitted that at that time also the construction was not fully completed. He further submitted that although house warming was done on 25/10/2016, the construction was not completed and it caused several inconveniences and hardships to the complainant. Further stated that after residing these he has to face the difficulties as :a)There is no light point fixed in the balcony. Although it was stated in the agreement for fixing the same . The light would cost Rs.4000/-. b) There are several incomplete works ie , the bathroom ducts has been left open with grill and concrete surface, which acts as breeding ground for mosquitoes and whenever rains it acts as bird shelter, for rectifying the same it will cost up to Rs.28,000/-. c) OPs have promoted sale on the basis of 1% reduction in registration charge as it’s a Green building, the complainant loss the 1% discount ie Rs.20,898/-. d) The construction lacks quality and there are several defects and damages including the dampness of walls and the peeling of coating and its approximate cost will be Rs.25,000. e) The car parking area on the basement has not been plastered and has rough concrete corrugation all over the area . The total cost of plastering and painting will be Rs.8,00,000/- . f) As per the builders agreement in the event of non completion of the construction as per the stipulated period, the builders agree to pay a rent of Rs.3/- per Sq/Ft per month and on that account the complainant is not entitled to get Rs.1,49,793/- from the Ops. Complainant further submitted that although it was communicated to the Ops from time to time, they have not done anything to redress the grievance of the complainant. According to complainant, all these show the deficiency of service and unfair trade practice. Hence complainant is entitled to get relief and also compensation from Ops. He further submitted that Ops were certainly, deficient in rendering services to the complainant by neither redress the grievance nor paying compensation.
On the other hand, the counsel for Ops 1&2 submitted that, no doubt the Ext.A1 agreement was executed between OP.NO.1 and complainant on 23/3/2010 as a result of unforeseen circumstances, delay is caused in completing the work, which is beyond the control of Ops. They further submitted that one of the reason for the delay is due to delay in getting the departmental sanction. Further on account of the obstruction/caused by the complainant and his association from entering into the premises and also the construction work, which ultimately resulted delay in completing the construction work of the apartment. 1st OP further submitted that the allegation of the complainant about the construction of the apartment lacks quality and several defects as pointed out in the complaint and damages in the building are not correct. Further submitted that they did not agree to give washing machine but agreed to provide electrical point for washing machine. Ops further submitted that the amount claimed as Rs.8 lakhs towards the cost of plastering and painting at car parking area is not all required to be paid by the Ops. Ops version is that the non-completion of the apartment as per agreement is not on account of the delay adopted by the Ops, but due to the delay in getting the departmental sanction, the panchayath and other departments delayed in sanctioning the approval. So the Ops are not entitled to pay claim Rs.149793/- as alleged by complainant. Ops further submitted that, under these circumstances, OPs 1&2 were not all deficient in rendering service nor they were liable to pay any compensation to the complainant.
The first question arises for consideration is as to within which period the construction of the apartment was likely to be completed? There is no dispute about the fact that the complainant booked for the allotment of the apartment in the building known as “The Nest” on 23/3/2010. The agreement is produced here and marked as Ext.A1. In which condition No.2 read as that the Builder undertakes to complete the construction within 24 months from this date. In the event the builder not completing the construction in the stipulated period, the builders agree to pay a rent of Rs.3/- per sq/ft per month subject to payment conditions are fulfilled as per this agreement.
The plain reading of clause 2 of the agreement(Ext.A1) clearly goes to reveal that the construction of the apartment units was to be completed within a period of 24 months from 23/3/2010. But the apartment was handed over to complainant only on 25/10/2016. Further even though the complainant had paid all the agreed amount, on 25/10/2016 itself the construction was not completed. Ops version is that the delay was not caused due to from their side. It was due to delay from the side of Panchayath in sanctioning the approval. For substantiating the contention Ops submitted that Exts.B3 and B5,judgment of Hon’ble High Court of Kerala in WP( C)10253/2013 dtd 10/4/2013 and 16256/2013 dtd 16/7/201. On perusal of these judgment it is revealed that the writ petition was filed challenging the notice issued by Secretary, Grama Panchayath to show cause why a permit issued to him for the construction of an additional floor should not be cancelled. It is also revealed that initially permission for the construction of fifteen floors was granted. Thereafter, the 1st OP had sought for adding an additional floor which was also granted on 31/3/2010. It is further stated that “However’ since the work could not be completed within the time stipulated, the petitioner had sought for renewal of the permit. It was that time Panchayath had issued notice to 1st OP to show cause the reason. Exts.B1&B2 also reveal that 1st OP got injunction order against complainant and associates from causing obstruction. Therefore, it was not on account of the circumstances, beyond the control of the Ops, that delay was caused in the construction of the Apartment. The documents produced by the Ops do not show that any restriction was imposed by any court or Authority upon them, to complete the construction work within the stipulated time as per Ext.A1 agreement. It was also not proved that there was any other environmental destruction (Act of God) caused them in constructing within the time. It is therefore, hold that the construction of the apartment of complainant was to be completed within 24 months from 23/3/2010.
The next question that arises for consideration is as to whether there was defect or damages in the building in question?
Ext.C1 prepared by Er.Sanilan E.K B.Tech(Hons)(Civil) AMIE, Executive Engineer(Rtd) LSGD Govt. Of kerala is the authentic document before us for answering the said question. On perusal of Ext.C1, the expert reported that പ്ലാനിൽ കാണിച്ചിരിക്കുന്നതുപോലെ വടക്ക് ഭാഗത്തുള്ള vertical duct ന്ർറെ തുറന്ന ഭാഗവും(open window with grill) service slab ഉും(without gap) കൊടുത്തിരിക്കുന്നത് പ്രശ്നങ്ങൾക്ക് കാരണമാകുന്നു. കേരളത്തിലെ ശക്തമായ North-west mansoon, rain season ൽ vertical duct ന്ർറെ തുറന്ന ഭാഗങ്ങളിൽ കൂടി മഴവെള്ളം അകത്ത്കടക്കുന്നത് പരിഗണിച്ചില്ല എന്നതും service slab ന് പ്ലാനിൽ പ്രകാരം gap (ഒഴിവ്) നല്കീട്ടില്ലഎന്നതും പ്രശ്നമായി വന്നിട്ടുണ്ട് . ഇതുമൂലം അടുത്തുള്ള ഭിത്തികളിൽ Dampness (ഈർപ്പം) ഉണ്ടാവുകയും ചെയ്യുന്നു. ഈ അവസ്ഥയിൽ ചുമരിലെ പെയിന്ർറിംങ്ങ് മങ്ങൽ അടർന്നുപോകൽ(fading & flacking) എന്നിവയും plastering ന് വിള്ളലുകൾ ,കേടുപാടുകൾ എന്നിവയും ഉണ്ടാകാവുന്നതാണ്. എന്നാൽ ഇവിടെ ഭിത്തികളുടെ അടിവശങ്ങളിലെ പെയിന്ർറിംങ്ങ് മങ്ങി അടർന്ന് തുടങ്ങിയതായി കാണുന്നു. കൂടാതെ ഭിത്തികളിൽ ഈർപ്പം( Dampness) നിലനില്ക്കുന്നതായും കാണുന്നു. ബാൽക്കണിയിൽ (Balcony) Ext(i) ൽ കാണിച്ചിരിക്കുന്ന ഭാഗത്ത് ലൈറ്റ് point നിലവിലുള്ലള്ലതായി കാണുന്നില്ല. Photos are also attached along with Ext.C1 report.
The plain reading of Ext.C1 report, clearly goes to show that the construction was defective.
The next question that arises for consideration is as to whether the complainant was entitled to compensation for not handing over the possession to him as per the terms and conditions of the Agreement(Ext.A1). clause 20 in the event the builder not completing the construction in the stipulated period, the builders agree to pay a rent of Rs.3/- per Sq/Ft per month. Complainant calculated the said amount as Rs.1,49,793/-. Here the parties executed the agreement(Ext.A1) with terms and conditions agreed between parties and thus, they are bound by the terms and conditions of the same. Here Ops does not have a case that complainant had not paid the agreed consideration within the time. No compensation beyond the terms and conditions contained in clause No.2 of the Ext.A1 agreement could be claimed by the complainant. It is thus, held that the complainant is entitled to compensation of Rs.1,49,793/- from the 1st OP.
Further with regard to provide washing machine in agreement there is no such condition included. Further the expert has not prepared the estimate of the work to be done for curing the defect noted by him. Further Expert has not suggested to rectify any work in car parking area. Further for proving the expenses incurred to complainant for painting work, complainant’s side has examined PW2 the painter who done work. In chief-affidavit as well as during cross-examination PW2 stated that for purchasing paint, complainant had to spent Rs.36,000/- and paid labour charge was Rs.24,000/-. From analysing the evidence of PW2, there is no reason to disbelieve him. So for the painting work complainant had to spent Rs.60,000/- which has to be paid by OP.NO.1.
Another point even though expert has assessed the expenses for the rectification of other work, complainant will have to spent about Rs.25,000/-. Further complainant has failed to prove the loss of 1% discount registration charges with document.
Here the learned counsel of OP has taken a plea that the present complaint is time barred. According to OPs, the complainant purchased the flat on 25/5/2016. The complainant filed the complaint before this Forum on August 2019 ie after 3 years 2 months. Under Sec.69 of the Consumer Protection Act 2019 Limitation period prescribed is 2 years from the date of cause of action. The cause of action as stated is 25/5/2016, the date of registration of the apartment. Hence sec.69 is applicable and complaint has to be rejected and dismissed as not maintainable.
Here on perusal of Ext.A4 series, the E- mail transactions between parties shows that the cause of action remained continuous. Hence the complaint is not time barred. So the judgment submitted by the learned counsel of Ops cannot be taken into account .
Considering the facts and circumstances of this case we are of the view that there is deficiency of service and unfair trade practice from the side of opposite parties 1&2 and the complainant is entitled to get relief. Since 2nd opposite party is the manager of the Apartment, he has no personal liability. Hence he is exempted from the liability.
In the result complaint is allowed in part. 1st opposite party is directed to pay Rs.1,49,793/- towards compensation, Rs.60,000/- towards expenses incurred for painting work and Rs.25,000/- towards rectification of other defective works as reported by Expert commissioner to the complainant. 1st opposite party is further directed to pay Rs.25,000/- as cost to the proceedings. 1st opposite party shall comply the order within one month from the date of receipt of this order. Failing which the awarded amount carries interest @9% per annum from the date of order till realization. Complainant is at liberty to file execution application for realization of the amount as per provision of Consumer Protection Act 2019.
Exts:
A1-Builders Agreement
A2 - Brochure
A3- photographs(marked with objection).
A4 - email communications
A5 -agreement of sale
A6- Sale Deed
C1-expert commission report.
B1&B2 -orders in IA NO.1598/2019 & IA.No.2412/19 in OS 211/2019 of Munsiff Court Kannur.
B3 -order of Hon’ble High Court in WP© No.10253/2013,
B4 -sale deed
B5- order of Hon’ble High Court in WP© No.16256/2013.
PW1-Sherri Mohanan-complainant
PW2-Sajesh.T- witness of PW1
DW1-Suresh Babu-1st OP
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew. Sajeesh K.P
eva
/Forwarded by Order/
ASSISTANT REGISTRAR
