SRI. K. ANIRUDHAN (MEMBER)
Filed on 26.10.2009
Sri.K.N. Radhakrishnan and Smt.R.Sobha have filed this complaint before the Consumer Disputes Redressal Forum, Ernakulam on 6.3.2009 and subsequently transferred to this Forum, as per the order of the Hon’ble CDRC dt. 29.8.2009.
2. The brief facts of the allegations of the complainants against the opposite parties are as follows:- The first complainant had purchased a Flat on 25.4.2007 owned by the second complainant from the opposite parties with their specific assurance that the opposite parties will provide all facilities agreed with the second complainant as per A1 agreement dt. 4.2.2000. The second complainant is the owner in possession of the flat bearing Cochin Corporation Door No.37/UA/3767 H in the 4th floor of “Sree Chakram Apartments” which is developed by the opposite parties. Second complainant was the original allottee of the aforesaid flat. As per the sale agreement dt. 4.2.2000, opposite parties agreed to transfer the undivided share and agreed to construct the flat as per the detailed general specifications for the building block given in Annexure II of the agreement to the second complainant. Opposite parties made with the complainants believe that this flat is numbered as 37/3767H by the Corporation of Cochin and handed over possession to the second complainant. In the meanwhile, on 13.32007 as mutually agreed by the first complainant and the opposite parties, the first complainant had paid a sum of Rs.4 lakhs as financial assistance to the opposite parties for forthwith providing the mandatory lift, fire escape, fire fighting equipments and Generator, which were not provided by the opposite parties. The first complainant during October 2008, on submitting the application for transfer of ownership of the flat in the records of the Corporation of Cochin was informed by the officials of the Corporation that the first complainant’s flat is an unauthorized construction having unauthorized sanction No. CC 37/UA 376H Door No. as CC 37/3767H was not allotted to the flat, since the mandatory of lift, Fire fighting equipment and Generator have not been provided by the builder, opposite parties and that the flats in the 4th floor of Sree Chakra Apartments remain as an unauthorized structure. At present an amount of Rs.9,71,400/- is required to provide the infrastructure facilities such as Lift, Fire fighting equipment and 25 KVA Diesel Generator set in order to make the flat as an authorized structure. There was no positive approach on the part of the opposite parties regarding the allegations. Hence this complaint.
3. Notice was issued to the opposite parties. They entered appearance before this Forum and filed detailed version.
4. Opposite parties filed joint version, contending that the Door number of the second complainant’s flat is actually 37/3767/H. Opposite parties admitted the agreement dt. 1.2.2007 between the first complainant and the second complainant. It is further contended that the first complainant along with his wife inspected the flat and after satisfying the condition paid the consideration to the second complainant and obtained the sale deed from the second complainant. No assurance was given by the opposite parties to the first complainant for the purchase of the flat from the 2nd complainant. Hence prayed for the dismissal of the complaint.
5. On the side of the complainants, first complainant was examined as PW1 and Sri. Gopakumar, Building Inspector, Corporation of Cochin was examined as PW2. On the side of the complainants, the documents Exts.A1 to A11 were marked and through PW2 the relevant certified extract of unauthorized structure register of Corporation of Cochin summoned was marked as Ext.X1. On the side of the opposite parties 2nd opposite party was examined as RW1 and Smt. Shylaja Soman who examined as RW2 and Exts.B1 and B2 were marked.
6. Considering the rival contentions of the parties, this Forum has raised the following issues for adjudication:-
1) Whether the complaint is barred by limitation?
2) Whether this Forum has jurisdiction to entertain this complaint?
3) Whether there is any deficiency in service on the side of the opposite parties?
4) Whether opposite parties have adopted unfair trade practice and culpable negligence?
5) Compensation and costs.
7. Issue No.1:- As per section 24A of Consumer Protection Act, 1986 a complaint had to instituted before the District Forum within 2 yeas from the date on which the cause of action arisen. The specific pleading of the complaint in paragraph 4 of the complaint is that it is in October, 2008, that the complainants came to know tat their flat is an unauthorized structure in the records of the Corporation of Cochin. Where as the contentions of the opposite parties is that it is not an unauthorized structure and that the Door No. of the flat is 37/3767/H. There is no specific denial of the case of the complainants regarding the date of knowledge as October 2008. The case of the complainants is that they were made believe by the opposite parties that the Door No. of the flat is 37/3767/H. This specific case of the complainants is proved by the mentioning of the Door No. of the flat in Ext.A2, A3, A6, A7 and A8 as 37/3767/H. Regarding Ext.A7, it is the title investigation report given by a senior counsel, even he is also been made to believe that the flat is an authorized construction, and it is only on that assumption that loan had been sanctioned. Where as, as is evident from X1, the UA Register of the Corporation of the Cochin, would show that the flat is an unauthorized structure. Ext.A8 is the sale deed which is dated 25.4.2007. Hence it can be safely concluded that the specific averments of the complainants regarding the date of knowledge in the complaint as October, 2008 is correct. Hence the complaint which is seen presented on 5.3.2009 is within 2 years as stipulated in the Consumer Protection Act, 1986, therefore we are of the strong view that this complaint is within period of limitation.
8. Issue No.2:- There is no specific dispute that the opposite parties are the builders of this flat. It is also come out in evidence, that the flat remains as an unauthorized structure, though the opposite parties denies the same. This fact is beyond dispute in view of Ext.X1 and deposition of PW2. The 2nd opposite party while cross examined as RW1 had admitted that he is the witness to Ext.A3 and that he had received a sum of Rs.4 lakhs from the first complainant as per Ext.A5 receipt and further that during this period, the 2nd complainant who is relative was working in a Bank in Delhi and that the signature in Ext.A3 was obtained by forwarding the same to Delhi to the 2nd complainant. Hence a complaint against the Builder who is induced the first complainant to purchase the flat and had received Rs.4 lakhs is maintainable before the District Forum as Section 2(i) (o) which defines service, clearly including any service, in connection with housing construction. Hence we held that this Forum has the jurisdiction to entertain the consumer complaint.
9. Issues 3 and 4:- The following details are beyond dispute that the second complaint had purchased the flat No.37/3767 H in the 4th floor of Sree Chakram Apartments and that the opposite parties are the builders of the said apartment. It is also beyond dispute that the opposite parties had agreed to provide the infrastructure as given in annexure 2 of Ext.A1. Ext.A3, A6, A7 and A8 would clearly show the door No. of the flat as 37/3767/H. Where as Ext.X1, the UA Register of the Corporation of Cochin that the door No. as 37/UA 3767/H. This would lead to the irresistible conclusion that first complainant was induced to purchase the flat by opposite parties on the belief that it is an authorized construction. In this context it is profitable to refer the deposition of PW2 Sri.Gopakumar, the building Inspector of the Corporation of Cochin. In page 2 line 4 on the words he has deposited that “building ground floor 4 Ground Floor + 3 - mandatory lift . Fire fighting system
Lift well . Lift .
Ground Floor + 3 - flat- unauthorized portion .
10. The specific case of the complainants is that it is the 2nd opposite party who had induced the first complainant to purchase the flat from the 2nd complainant who in Delhi. The specific case of the complainant is admitted by the second opposite party while he was cross examined as RW1. In page 3 lines 1 to 4 of his deposition read as follows:- “A3 agreement
A3 agreement-
RW1 further admits in page 3 lines 10, 11 and 12 that 1-)o Baby M.Perumpilly
Ext.A5 issued by opposite parties would establish the fact that second opposite party has received the amount of Rs.4 lakhs from the first complainant for providing the lift and other facilities in the said apartments. The aforesaid fact is further substantiated in the deposition of RW1 in page 3 lines 15, 16 and 17 that “A5
It is also relevant here to advert the deposition of RW2 Smt. Shylaja Soman who is the wife of the second opposite
party. In page 1 lines 13, 14, 15 and 16 that, “
Further in page 2, line 5, 6 and 7, RW2 Smt. Shylaja deposes that, “
From the aforesaid discussion of evidence, the case of the complainant that if the second opposite party who induced the first complainant to purchase the flat and that he had stage managed every thing and further that he had received Rs.4 lakhs from the first complainant promising to provide the lift, it is sustained. In view of the aforesaid discussion, we found the issues 3 and 4 in favour of the complainants.
12. Issue No.5:- Exts. A9, A10 and A11 are the estimate given by the respective manufacturers of the lift, fire fighting system and generator set. PW2 had deposed before this Forum that if the facilities of lift, fire fighting system and NOC and generator are provided, the flat can be converted as an authorized structure. While RW1 was examined before this Forum a specific question was put to RW1, the 2nd opposite party regarding Exts.A9, A10 and A11 to the effect that what is in opinion regarding the estimation given in the aforesaid documents for providing the lift, fire fighting system and diesel Generator set. RW1 has stated that he had no opinion that the estimation is on the higher side. This is more relevant since RW1 admittedly is an architect, valuer and surveyor himself. Hence there is no reason why not to accept the estimation in Exts.A9, A10 and A11 amounting to Rs.9,70,400/-. It is obvious that the first complainant is facing threat of demolition of residential area since it is an unauthorized structure as is evident from Ext.X1. Hence the payer for Rs. 2 lakhs cannot be said to be unreasonable. Where as since we are ordering the rectification of the aforesaid defects in the building, we are of the view that the compensation is to be limited to Rs. 1 lakh. Further since opposite parties could not explain for what purpose they are received Rs.4 lakhs from the first complainant in addition to the sale consideration of Rs.12 lakhs, we order to refund Rs.4 lakhs with 12% interest from 13.3.2007 (Ext.A5) till the date of realization. Opposite parties are jointly and severally liable for this. Considering the whole aspects of this case, we are of the strong view that there is unfair trade practice, grossest deficiency in service and culpable negligence on the part of the opposite parties by way of willful refusal to provide the lift, fire fighting equipments, with NOC generator set and other accessories required for the schedule flat, in time, and for acceptance of Rs.4 lakhs from the first complainant without any bonafides and opposite parties jointly and severally liable for the mental agony, pain, sufferings, physical strain, loss and inconvenience, sustained by the first complainant. Hence considering the entire facts and circumstances of this case, we are of the view that the complaint is to be allowed.
In the result, we hereby direct the opposite parties:-
(1) to provide the mandatory lift, fire fighting equipments with NOC and diesel generator set are provided in
Ext.A9, A10 and A11 quotations within 2 months from the date of receipt of this order, and in case of any
default on the part of opposite parties, the opposite parties shall pay a sum of Rs.9,71,400/- (Rupees nine
lakhs seventy one thousand and four hundred only) to the first complainant.
(2) and pay an amount of Rs. One lakh as compensation to the first complainant for his mental agony, pain,
sufferings, physical strain, loss and inconvenience caused by the opposite parties willfully by way of their
unfair trade practice, cheating, grossest deficiency in service, culpable negligence and for acceptance of
Rs.4 lakhs from the first complainant without any bonafides and
(3) we further direct the opposite parties to return Rs.4 lakhs (Rupees four lakhs) to the first complainant
within one month from the date of receipt of this order and in case any default, the opposite parties shall
pay interest at the rate of 12% till the date of realization.
(4) we further direct the opposite parties to pay an amount of Rs.5,000/- (Rupees five thousand only) as costs of
this proceedings and further direct that the opposite parties shall comply the item No. 5 (2) to (4) within 30
days from the date of receipt of this order.
Complaint allowed.
Pronounced in open Forum on this the 30th day of August, 2010.
Sd/- Sri. K. Anirudhan:
Sd/- Sri. Jimmy Korah:
Sd/- Smt.N.Shajitha Beevi:
Appendix:-
Evidence of the complainant:-
PW1 - K.N.Radhakrishnan (Witness)
PW2 - Gopakumar.G. (Witness)
Ext.A1 - Agreement for development and sale
Ext.A2 - Copy of the sale deed
Ext.A3 - Copy of the agreement for sale
Ext.A4 - Copy of the encumbrance certificate
Ext.A5 - Receipt dated 13.3.2007
Ext.A6 - True copy of the Property tax – official receipt
Ext.A7 - copy of the Title investigation report
Ext.A8 - Copy of the deed of sale be Sobha Balakrishnan
Ext.A9 - Leaflet
Ext.A10 - Letter dated 5.2.2009
Ext.A11 - Letter dated 21.2.2009
Ext.X1 - UA Register of the Corporation of Cochin
Evidence of the opposite parties:-
RW1 - S.Soman (Witness)
RW2 - Shylaja Soman (Witness)
Ext.B1 - Receipt of UCO Bank for Rs.5/- (Photo copy)
Ext.B2 - Cheque receiving receipt (Photo copy)
// True Copy //
By Order
Senior Superintendent
To
Complainants/Opposite parties/S.F.
Typed by:-pr/-
Compared by:-
