Tamil Nadu

South Chennai

cc468/2007

r dhanasakeran - Complainant(s)

Versus

uma maheswari ltd - Opp.Party(s)

A.Mohan

03 Sep 2015

ORDER

                                                                         Date of Filing :  13.09.2007

                                                                        Date of Order :  04.09.2015

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI(SOUTH)

     2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

PRESENT: THIRU. B. RAMALINGAM M.A.M.L.,                      : PRESIDENT

                 TMT. K.AMALA, M.A.L.L.B.,                                   : MEMBER I

                 TR. T.PAUL RAJASEKARAN, M.A PGDHRDI, AIII,BCS : MEMBER II

 

                            C.C.NO.468/2007

FRIDAY THIS 4^TH DAY OF SEPTEMBER 2015

 

R. Dhanasekaran,

Old No.7, New No.74,

Kutty Gramani Street,

Raja Annamalaipuram,

Chennai – 28.                                               ..Complainant

                                                 ..Vs..

 

M/s. Uma Maheswari Builders,

Rep; by its Proprietor,

Mr.S.Raghu,

Old No.58/64,

Kamarajar Salai,

Raja Annamalaipuram,

Chennai – 28.                                                .. Opposite party.

 

For the Complainant            :  M/s.  A.Mohan & others   

For the Opposite party                 :  M/s. C.Murugan.    

 

 

        This complaint is being filed by the complainant u/s 12 of the C.P. Act 1986 for a direction to the opposite party to demolish the second floor of the flat and also to rectify the leakages developed on the ceiling of the complainant  and to pay a sum of Rs.10,00,000/- as compensation to the complainant.      

ORDER

 

THIRU. B. RAMALINGAM PRESIDENT        

 

         

1.The case of the complainant is briefly as follows:-

         The opposite party is flat promoter and as such he developed a flat system after getting necessary sanction and approved from the local bodies.   The opposite party developed a two stories building  (ground floor and first floor) and the complainant had purchased the flat measuring about 360 sq ft together with undivided share of land to an extent of 190 sq ft for which the complainant has paid a sum of Rs.5,75,000/- towards the opposite party.    At the time of purchasing his flat, he has pointed out certain deficiencies in respect of the completion of the building works for which the officials attached to the opposite party has informed the complainant that he would complete and make good those deficiencies within one month but the opposite party has never kept up his promise and whenever the complainant approached the opposite party, he was driven from pillar to post and the official attached to opposite party has also adopted a dilly – dallying practice by citing one reason or other for not fulfilling the promise made by the opposite party.

2.     To the shock and surprise of the complainant there is a leakage on all the places through ceiling during rainy season and when the same was informed to the opposite party, the complainant was promised that the same would be rectified very soon.  But so far no such rectification or any other work was carried out by the opposite party.   The complainant was also taken on shock and surprise to note that the opposite party started constructing the second floor even without obtaining any sanction or approval either from CMDA or from any other local bodies.  The opposite party has committed a lot of deficiencies in constructing the above said flat and also has violated the rules and regulations of local bodies in constructing the 2^nd floor even without obtaining sanction or plan approval from the local bodies or from the CMDA.    When the opposite party handed over the flat to the complainant there was no facility provided for ventilation and the same was also brought to the notice of the opposite party but till date the opposite party has not evinced any interest to rectify the deficiencies.    As such the act of the opposite party  amounts to deficiency in service and unfair trade practice which caused mental agony and hardships to the complainant.  As such the complainants have sought for demolish the second floor of the flat and also to rectify the leakages developed on the ceiling of the complainant  and to pay a sum of Rs.10,00,000/- as compensation to the complainant.  Hence the complaint.     

3.      Written version of   opposite party is   as follows:-

It denies all the averments and allegation contained in the complaint except those that are specifically admitted herein.  The opposite party is builder and as such the opposite party developed the flat with ground floor, first floor and partly constructed second floor and at this stage complainant approached the opposite party for a flat and after seeing the ground floor portion of the flat, got fully satisfied with the construction, design materials and ventilation decided to purchase the said ground floor portion.   The complainant entered into an agreement for sale with the opposite party for purchase of the said ground floor portion for a total sale consideration of  Rs.4,95,000/- and paid an advance of Rs.95,000/- and also agreed to pay Rs.40,000/- separately for getting EB, Metro Water and Sewerage connection.    Even in the said agreement it is clearly stated that there is ground floor, first floor and second floor in the said flat and the complainant obtained housing loan and paid the sale consideration to the opposite party.    The complainant has executed a undertaking letter that the building has been constructed properly and also given consent to construct the water tank in the terrace portion of the second floor. 

4.     The complainant purchased the flat after knowing that second floor is constructed therein, now comes to this forum as if he does not know anything about the construction of second floor.  The complainant is no way affected or put into loss by construction  in second floor and the complainant have no right to challenge the same.    There is leakage on all the places through ceiling during the rainy season and the same is informed to the opposite party is false and baseless.   There is no deficiency of service as alleged by the complainant and he has not undergone any loss, hardship, mental stress.      Therefore the complaint deserves to be dismissed.   

5.   Complainant has filed his Proof affidavit and  Ex.A1 to Ex.A5 were marked on the side of the complainant.    Opposite party have filed his proof affidavit and Ex.B1 to Ex.B6 were marked on the side of the opposite parties and also  Ex.C1 is marked.

6.         The points that arise for consideration are as follows:-

1.    Whether there is any deficiency in service on the part of the opposite party ?

 

2. To what relief the complainant is entitled to?

 

7. POINTS 1 & 2 :

        Perused the complaint filed by the complainant, written version filed by the  opposite party,  the  proof  affidavit filed by complainant and opposite party and Ex.A1 to Ex.A5 filed on the side of the complainant and Ex.B1 to Ex.B6 filed on the side of the  opposite party  and Commissioner Report Ex.C1   and considered both side arguments. 

8.     The complainant has stated that he has purchased the 190 sq ft. of undivided share of land as per Ex.A4.  The complainant has stated in the complaint that the opposite party as a building promoter has constructed the building in the total land of the property in which the complainant is an owner by purchase of common share of 190 sq ft.    Accordingly the complainant has purchased the flat in a ground floor measuring about 360 sq ft from the opposite party.  Though the opposite party has accepted in his written version that as a promoter and constructor has constructed the said building in which as mentioned by the complainant he has purchased one flat in the ground floor, whereas the opposite party in his written version has mentioned in respect of the ground floor of the said flat has been constructed by him as per sale agreement entered with the complainant.  

9.     However the complainant has raised grievance in this complaint that the opposite party being a promoter of building construction  has constructed the said total building in which one of the flat in the ground floor was sold to the complainant as such the complainant is in possession  and enjoyment of the same from the year 2006 as a owner and the complainant has raised further allegation that the said construction of the building as a promoter the opposite party has obtained building permission for the construction in the year 2004 in first floor and ground floor alone.  Contrary to the said building permission the opposite party has constructed the 2^nd floor without the proper building permission despite of the objection made by the complainant and the flat  which was constructed and sold to the complainant by the opposite party is also not properly constructed  in the several place, the roof of the building of the said flat found leakages and crakes in the walls of the building of the said flat are all found.   Despite of the complaint made by the complainant to the opposite party though the opposite party promised  to rectify the same not did so.  As such the complainant has issued legal notice Ex.A2 dated 7.6.2007 and reply letter Ex.A3, dated 27.7.2007 given by the opposite party.   As such the complaint filed by the complainant against the opposite party seeking complaint mentioned relief i.e. for rectification of defects in the building and for demolition of 2^nd floor and for compensation with costs.

10.    Whereas the opposite party resisting the said complaint stating that the complaint mentioned flat in the ground floor of the total area was purchased by the complainant after verifying in the construction of the building without raising any objection or notifying any defects at the time of purchase in the year 2006 and also applied for bank loan etc.   The construction in the ground floor is portion of the building which was existing at the time of purchase of the flat by the complainant.     Contrary to this raising objection with regard to the 2^nd floor in the existing building and making allegation with regard to the construction and mentioned defects in the construction by the complainant are all not sustainable and the complaint is to be dismissed.

11.    The opposite party has filed sale agreement Ex.B1 and construction agreement Ex.B3 and written promised (உறுதிமொழி படிவம்) given by the complainant to the opposite party dated 27.1.2006 as Ex.B4.  Therefore as per both side case  the complainant having purchased the common share of land for the complaint mentioned flat by Ex.A1 has entered with the opposite party for the construction of building i.e. flat in the ground floor.  On the basis of the said construction agreement,  complaint mentioned flat No.G in the ground floor was constructed by the opposite party is acceptable.    Contrary to this there is no proof that the complaint mentioned flat in the ground floor was sold and purchased by the complainant  and cannot be acceptable, since there is no such document for the same filed in either the other side. 

12.    On going through the document Ex.B1, there is a mention of proposed construction of building in the said land in which portion of the land of common share was purchased by the complainant there is a proposal of construction of ground floor, 1^st floor and 2^nd floor.   Further as per Ex.B4, filed by the opposite party which is written promise given by  the complainant to the opposite party dated 27.1.2006, in which it was mentioned about the construction of the 2^nd floor i.e.

        “நீங்கள் நல்லமுறையில் கட்டியுள்ள கட்டிடத்தில் தற்போது மேல்நிலை தண்ணீர் தொட்டி அமைக்கவில்லை.  மேற்சொன்ன அடுக்குமாடி கட்டிடத்தில் இரண்டாவது தளத்தை கட்டிமுடித்த பின்பே அதன்மேல் உள்ள மொட்டை தளத்தில் மேல்நிலை தண்ணீர் தொட்டி கட்டிக் கொள்வதற்கு நான் முழுமனதுடன் சம்மதிக்கிறேன்.  இதற்கு நான் எந்தவிதமான ஆட்சேபனையும் தெரிவிக்க மாட்டேன் என்று உறுதிகூறுகிறேன். “

 

Therefore according to the opposite party the flat No.G which was constructed by them was handed over to him without any defect and complainant also given consent letter for construction of over tank on the 2^nd floor construction after completion of the said construction.   Therefore contrary to the said Ex.A1 and Ex.B4 the complainant objection that the 2^nd floor construction in the said building was raised without knowledge of the complainant is not acceptable and as such raising objection in this regard is raised by the complainant for the purpose of complaint in order to get wrongful gain.  However the complainant has categorically stated that the building permission of the construction of the said building in the year 2004 was obtained only for the construction of ground floor and 1^st floor as such the construction of 2^nd floor building is without proper permission as such the said portion of the construction made in the 2^nd floor has to be demolished.   Further the building approval plan filed on the side of the complainant Ex.A5 proves that there is no permission for construction of building in the 2^nd floor,  it has been showed as open place only.  Therefore as contended by the complainant the opposite party has not obtained building plan for the construction of 2^nd floor is acceptable.  The Commissioner who has appointed by this Forum and inspected the said building on 10.7.2010 has stated  in his report that there is a construction in existence in the 2^nd floor.   Further as stated above Ex.B1 and Ex.B4 also reveals that at the time of existence of the said portion there is a proposal of making construction in the 2^nd floor for which the complainant also having knowledge.   Therefore it is clear that the  opposite party has constructed the building in the 2^nd floor without obtaining permission but with knowledge of the complainant during the year 2006  itself.    However the complainant has raised objection with regard to the Ex.B1 & Ex.B4 as they are concerted documents with the signature obtained by the opposite party in unwritten white paper and stamp paper on mis-representation are all cannot be decided by this forum.  Since the allegations of such fraud raised by the complainant against the opposite party  are concerned with the complicated issues relating to facts and law  and required elaborate evidence.  Further it requires that the concerned authorities for granting building permission is to take necessary action in this regard.  Therefore we are of the considered view that the grievance made by the complainant regarding unauthorized construction of 2^nd floor in the said building and relief sought for by the complainant against the opposite party for demolition of such construction are all the matters to be taken by the complainant before appropriate Civil court or taking necessary action before the concerned authority which is granting building permission.  Therefore this forum is not inclined to decide this issue and to grant relief sought for by the complainant in this complaint. 

13.     Therefore we are of the considered view that as per the Commissioner’s report at the time of inspection of the commissioner has noted in his report that the said complaint mentioned flat owned by the complainant is found with leakage in entire roof area of the flat,  Hair cracks found in hall and Bed Room area, Vertical cracks found in Northern side room and another vertical cracks seen in between wall and ceiling portion area which were specifically mentioned in the report.   Though the opposite party has raised objections stating that the inspection was made in the year 2010 as such the building at that time was four years old the said leakage and other cracks are not considered to be defect in the construction but would have happen in the usual course of using the flat by the complainant, as such the opposite party is not responsible is not acceptable.   Because the complainant already raised such objection and sent legal notice to the complainant before filing this complaint and also mentioned in the said defects in the complaint.  Therefore those defects in the said flat that leakage found in entire roof area of the flat,  Hair cracks found in hall and bed room area, Vertical cracks found in Northern side room and another vertical cracks seen in between wall and ceiling portion area  due to the deficiency in construction made by the opposite party and the opposite party is responsible for the same and the opposite party is liable to rectify the said defects are all acceptable.

14.     Therefore we are of the considered view that the opposite  party is directed to rectify the defects in the construction as detailed in the engineer’s report attached with Ex.C1 i.e. 1. To rectify the leakage in entire roof  of the flat  2.  Hair Cracks found in Hall and Bed Area.  3. Vertical Cracks found in Northern side room and another vertical cracks seen in between wall & ceiling portion area or in alternative, the opposite party is directed  to pay a sum  a sum of Rs.50,000/- towards expenses  for rectifying the same by complainant himself and also to pay a sum of Rs.20,000/- as  compensation for mental agony  and also to pay a  sum of Rs.5,000/-   as cost of the complaint to the complainant and  as such the points 1 & 2 are answered in favour of the complainant. 

        In the  result,  the complaint is partly allowed.    The opposite party is directed to rectify the defects in the construction as detailed in the engineer’s report attached with Ex.C1 i.e. 1. To rectify the leakage in entire roof  of the flat  2.  Hair Cracks found in Hall and Bed Area.  3. Vertical Cracks found in Northern side room and another vertical cracks seen in between wall & ceiling portion   area or in alternative, the opposite party is directed  to pay   a sum of Rs.50,000/- (Rupees Fifty thousand only) towards expenses  for rectifying the same by complainant himself and also to pay a sum of Rs.20,000/- (Rupees twenty thousand only) as  compensation for mental agony  and also to pay a  sum of Rs.5,000/- (Rupees five thousand only)  as cost of the complaint to the complainant within  two months from the date of receipt of  this order, failing which the amount of (Rs.50,000/- + Rs.20,000/) shall carry interest at the rate of 9% per annum from the date of order  passed till the date of realization.

 Dictated to the Assistant transcribed and typed by her corrected and pronounced by us on this  4^th     day of September  2015.

 

MEMBER-I                                         MEMBER-II                                           PRESIDENT.

Complainant’s Side documents :

Ex.A1- 23.3.2007      - Copy of representation of the complainant to the Asst.

                               Commissioner, Corporation of Chennai.

Ex.A2- 7.6.2007        - Copy of legal Notice issued to the opposite party.

Ex.A3- 27.7.2007      - Copy of reply notice by the opposite party.

Ex.A4- 10.3.2006      - Copy of Sale Deed.

Ex.A5-                    -       - Copy of Approved Plan.

 

Opposite party’s side documents: -    

 

Ex.B1-  27.1.2006     - Copy of Sale agreement.

Ex.B2-            27.1.2006     - Copy of Sale agreement.

Ex.B3-            27.1.2006     - Copy of Construction Agreement.

Ex.B4-            27.1.2006     - Copy of undertaking letter.

Ex.B5-           -       - Copy of undivided share and construction area working calculation.

Ex.B6-                    -        - Copy of Encumbrance Certificate.

 

Court Side Exhibits:

 

Ex.C1 -          -        -  Advocate Commissioner Report along with Engineer’s report.

 

 

 

MEMBER-I                                          MEMBER-II                                         PRESIDENT.