BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

Dated this the 30^th day of August 2018

                                       Filed on: 11.08.2015

          PRESENT:

 Shri. Cherian K. Kuriakose                          President

 Shri. Sheen Jose,                                        Member

 Smt. Beena Kumari V.K.                              Member.

                            C.C.No.542/2015

                                   Between

O R D E R

Beena Kumari V.K., Member

The complainant is a society registered under the Travancore- Cochin Literary, Scientific and charitable societies Registration Act, 1955.  The complainant – Society consisted of 15 members and the complainant – society entered into a sale and construction agreement with the opposite parties.  The 1^st opposite party is the builder and promoter of the building project by name ‘Nakshathra Malika’ and the 2^nd opposite party is the proprietor of the 1^st opposite party – Builder.  The complainant submitted that the opposite parties delayed the construction of the apartment even when the entire cost of construction was paid to the opposite parties.  The opposite parties through their brochure and website, offered various amenities and facilities in the project, but the opposite parties failed to do the following constructions namely construction of drivers dormitory, gymnasium, Association room, recreation room, tiling of party area, fixation of windows there, fixation of intercom waste water treatment plant, installation of firefighting equipments.  It is also alleged that there was faulty fixture of horizontal grills in the balcony and common area, non-completion of electrical fittings in the common areas painting and cleaning work of the entire project, fixture of vent pipe cowls for the pipes in the terrace.  It is submitted that window shutters are not fixed with acrylic beading that the lift well is percolated with water, that the well was not cleaned and the well was not deepened to the required depth by the opposite parties.  It is contented by the complainant –Society that the opposite parties had abandoned the project all on a sudden without handing over the completed project to the complainants Association.  It is submitted that the opposite parties are liable to pay the water charges of Rs.26,242/- since the  above charges related to the water consumed for the construction of the project that the opposite parties are liable to compensate the complainant for the long and unexplained delay in handing over the completed project to the complainant – Society and for the non-completion of common amenities as stated above.  This complaint is filed before this Forum seeking directions of this Form to the opposite parties to complete the entire construction in accordance with the terms and conditions of construction agreement or to allow the complainant –Society to take over the construction work of the project “Nakshathra Malika’ including common amenities, to pay Rs.10,00,000/- to the complainant towards compensation for denial of service and for the unfair trade practice committed by the opposite parties, to direct the opposite parties to pay Rs.26,242/- to the complainant – Society which amount was remitted towards water charges by the complainant – Society, along with costs of this proceedings. 

2)       Notices were issued to the opposite parties and the opposite parties filed their version in response to the notice received by them.

3)       Version of the opposite parties

          It is submitted that that the complainant is not a consumer, hence this complaint is not a consumer, hence this complaint is not maintainable before this Forum.  It is submitted that all facilities and amenities as agreed between the parties were provided in the residential complex, that after handing over possession of the residential apartments and after the formation of the welfare association, the complainant is responsible for appointing and paying the security as well as the water Electricity charges for enjoying the common amenities, that the opposite party had paid the entire water consumption charges as on the date of handing over apartments, that the opposite party had never abandoned the project as alleged by the complainant, that the entire works as per the agreement were completed by the opposite party, that all amenities in proportion to the consideration paid by the occupants of the residential apartments were provided, that the opposite parties had not given any false promise as alleged by the complainant.  It is submitted that it is the duty of the Association to do all maintenance and other works after the handing over of the building and its premise and this complaint is filed only to make unjust enrichment and the opposite parties further submitted that there was no delay in completion of the construction work of the apartments and the completion of the project was done by highly skilled team of architect, engineers and artisans and after handing over possession of the apartments the respective owners are bound to pay all charges including the expenses for common amenities and the necessary maintenance and repairs are also have to be carried out by the allottees or the owners Welfare Association, that allegations of negligence, deficiency in service and unfair trade practice on the part of the opposite parties are false, that complainants have no cause of action against the opposite parties and the claims/demands made in the complaint are unsustainable.  Hence the opposite parties sought for the dismissal of this complaint with costs to the opposite parties.

4)     Issues to be decided in this case are as follows:

1. Whether this complaint is maintainable before this Forum?
2. Whether the complainant- Association has proved deficiency in service or unfair trade practice on the part of the opposite parties?
3. Whether the opposite parties are liable to pay Rs.10,00,000/- towards compensation for the  denial of service or unfair trade practice if any committed by them and to refund Rs.26,242/- towards water charges paid by the complainant and to pay the costs of this proceedings?

5)       The evidence in this case consisted of the documentary evidences marked as Exbt.A1 to A14 on the side of the complainant (Exbt.8 A in series) and exbt.B1 to B4 on the side of the opposite parties.  Commission Report marked as Exbt.C1 and the Expert Commission was examined as PW1.

6)       Heard the complainant.

7)       Issue No. (i)

          Exbt.A1  is a copy of the Brochure issued by the 1^st opposite party- Integrated Housing Development Corporation (IHDC) a propriety concern.  IHDC is engaged in the construction of multistoried Apartments and Nakshatra Malika is the latest project of IHDC.  Exbt.A2 is a copy of the construction Agreement dated 23.02.2008 entered into between Sri.Vinoy Korambvalyath, a member of the complainant owners Association and the opposite party – IHDC.  As per the above agreement the opposite party – IHDC agreed to construct a flat marked as I-A in the First Floor (A type) of a total area of 1522 sq.ft in the apartment – Project by name ‘Nakshatra Malika’.  The cost of construction fixed was Rs.16,50,000/-.  The opposite party – IHDC agreed to complete the construction of the apartment before December 2008.  All taxes including building tax, property tax, contribution to workers welfare fund, works contracts tax, service tax, electrical expenses etc were agreed to be exclusively met by the apartment – owners Exbt.A3 and A4 are the true copies of the lawyer notices both dated 07.02.2015 issued to 1^st and 2^nd opposite parties directing them to complete works relating to common amenities and to pay Rs.9480/- to electrical inspectorate Rs.26,242/- to Kerala Water Authority, Rs.6000/- towards repair charges of the main entrance gate Rs.7000/- towards repair charges of the exhaust pipe of the generator.  Exbt. A5 is the copy of the reply notice dated 25.02.2015 and Exbt.A6 is the reply notice issued by the 2^nd opposite party agreeing to do the electrical duet covering, lift pit water proofing STP overhanding, name board correction, to correct overflow of overhead water tank.  Exbt.A7 is a copy of the extract of minutes of the executive committee of Nakhatra Malika owner Association (NOWA).  On 15.03.2015 it was unanimously decided to proceed legally against the opposite party – IHDC by filing a complaint before the Consumer Forum.  Accordingly the complainant filed this complaint before this Forum on 11.08.2015.  Exbt.A8 is a copy of ground floor plan and exbtA8 (a) is a copy of site plan which also included Location plan, Terrace Floor plan and the plan of proposed rain water Harvesting capacity of 61500 litres. Exbt.A9 is a copy of the construction agreement entered into between the opposite party 1 –IHDC Builder and Sri.Chandran M A (referred to as the Allottees) and the land owner Dimpu Peter of 25 cents of land in Sy. No.281/2 in Ponnurunni Desom, Poonithura village, Kanayannur Taluk, Ernakulam District) had devised a project for development of the property by construction of a multi storied building therein consisting of 15 Nos. of apartments for residential purpose alone, with common areas and common facilities and for the sale of undivided share in the land to persons intending to construct apartments in the said multistoried building.  In the above agreement it is stated that the price of the undivided share will be Rs.6,67,000/- and the cost of construction of apartment No.5A in V Floor will be Rs.26,13,000/- and the allottees agreed to pay total amount Rs.35,80,000/- for each flat to the Builder of Nakshatra Malika and allottees.  Being Non-resident Indians it was also agreed to make the above payment through bank under NRI accounts.  The allottees also agreed to deposit with the Builder a sum of Rs.50/sq.ft. as Corpus Fund for the owners Association to be formed and required monthly contribution towards the maintenance of common amenities.  The allottees also agreed that the Builder shall not be liable to set right any structural defects which are reported 12 months after the date of notice of readiness to hand over possession of the scheduled property.  Exbt.A10 is a copy of sale agreement between the opposite party – IHDC, builder and Sri.H.Krishna Pillai, wherein the land owner Dimpu Peter agreeing purchase 4/75 undivided share in the land of 25 cents for the construction of Apartment No.B on the IV floor of ‘Nakshatra Malika’ to be built there by the Builder for a total sale consideration of Rs12,00,000/- and to pay Rs.34,00,000/- towards cost of construction of the above apartment along with car parking area, care taker room, watchman’s shed, club house, swimming pool, garden, water tanks and such other structures.  Exbt.A11 is a copy of the sale cum construction agreement between the Builder Binu and Jebby Punnoose agreeing to purchase undivided share in the land for Rs.11,12,000/- and to pay cost of construction of apartment No.31/1006-C8 in ground floor for Rs.14,88,000/-.  The builder and the apartment also agreed, inter-alia, to provide car parking and common amenities.  All expenses including stamp duty, registration fee of the sale deed etc are agreed to be met by the purchaser.  Exbt.A12 is a copy of the construction agreement between the opposite party – IHDC, Builder and S.Hariharan and Thresiamma, agreeing to purchase 6/75 undivided share of land for Rs.12,00,000/- and to pay cost of construction of apartment No.5 C in V Floor of Rs.55,00,000/-.  The allottees also agreed inter-alia, to pay a sum of Rs.50/- sq.ft. as corpus fund for the Owners Association.  Agreement between the opposite party – IHDC, Builder and R.V.Ramanan agreeing purchase 6/75 undivided share of land for rs.12,00,000/- and to pay cost of construction of apartment No.3C on the III Floor including car parking and common amenities for Rs.55,25,000/-.  Exbt. A14 is a copy of the construction agreement between the opposite party – IHDC, Builder and Jinnu Agustine agreeing to pay Rs.16,78,766/- towards cost of construction and agreeing to complete the construction before December 2008.

8)       The complainant –Nakshatra Malika Owners welfare Association (NOWA) submitted that the cause of action arose when the complainant had sent a registered notice to the opposite parties ie., on 07.02.2015.  From the copies of construction agreement it has become evident that the opposite party-IHDC, the Builder had agreed to complete the construction of the apartments in December 2008 and from the deposition of PW1, the expert commissioner, it is revealed that the possession of the multistoried apartment complex ‘Nakshatra Malika’ was handed over to the apartment owners in the year 2012 and the apartment owners/allottees had agreed that the Builders shall not be liable to set right any structural defects reported 12 months after the date of notice of readiness to hand over the date of notice of readiness to hand over possession of the scheduled properties in the respective agreements of construction.  From the above facts, it is evident that the cause of action for this complaint arose in the month of December 2008 in which month the Builder had agreed to complete the construction of the apartment –complex and in the year 2012 when the possession of the apartment complex was handed over to the allottees/Apartment owners and not on 07.02.2015 when an advocate notice was issued to the opposite party –IHDC. Moreover, the complainant has not produced the Bye-law of the Association, or the payments receipts towards cost of construction.  The complainant has also not revealed the date of handing over possession of the apartment complex to the NOWA. Here the complainant –Association has filed this complaint on 11.08.2015 ie. after 7 years from the agreed date of completion of the apartment complex ‘Nakshatra Malika’.  Hence this complaint is barred by the period of limitation of 2 years from the date of cause of action, as envisaged in section 24 A of the Consumer Protection Act, 1986. Hence this complaint is found not entertainable before this Forum.  The 1^st issue is therefore decided against the complainant –Association.

9)       Issue Nos. (ii) and (iii)

          Having found the issue No. (i) against the complainant, we are not inclined to consider and to decide other issue Nos. (ii) and (iii).

10)     In the result, we find that this complaint is liable to be dismissed as time barred and accordingly this complaint stands dismissed.

          Pronounced in the open Forum on this the 30^th day of August 2018.

Sd/-Beena Kumari, V.K., Member

                                                                    Sd/-Cherian K. Kuriakose, President

Sd/-Sheen Jose,   Member

                                                                             Forwarded by Order

                                                                             Senior Superintendent

APPENDIX

Complainants Exhibits

Opposite party's Exhibits:         

Depositions

PW1  ::        N.Robeson

          C1     ::        Commission Report

Date of Despatch   :

          By Hand      :

          By Post       :

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