M/S. Crystal Properties, Rahmans, Judge’s Avenue and Another Vs. Siby Mathew and Others - Court Judgment

Excerpt:

Judgment:

SHRI. M.K. ABDULLA SONA : MEMBER

This appeal prefers from the order passed by the CDRF, Ernakulam in OP No. 479/2004. The appellant 1 and 2 prefers this appeal from the impugned order passed by the Forum below. The 1^st respondent is the complainant and 2^nd and 3^rd respondents are the 3^rd and 4^th opposite parties in the above OP.

2. This appeal prefers under the directions of the Forum below that the opposite party 1 and 2 are directed to comply with Ext. A6 agreement or in the alternative refund Rs.7,35,000/- with interest @ 9% per annum from the date of filing of this complaint (25-9-04) till realization. The opposite parties shall also to pay Rs. 2,500/- as costs to the complainant.

3. This case is originated from the defect of building which the complainant purchased with a plot named as “Villa” (after the construction and hand over the villa) from the opposite parties. The complainant is having a strong case that it was agreed that the construction would be completed with in 8 months and an agreement was executed on 30-8-2002. The construction proceeded at a very slow process and the complainants wife used to supervise the construction and the foundation and concrete roof slabs regularly. The complainant repaying the housing loan with interest and has spend approximately Rs.2,00,000/- towards interest till now. The opposite parties have neither done the temporary repairing works promised, nor completed the construction of the new house and even failed to execute the sale deed with regard to the adjacent plot No. 4. Inspite of several reminders there was no progress in the work of the new building and no initiate to execute the deed of transfer of the new site, to the complainant. According to him, the act of the opposite parties amounts to gross negligence and deficiency of service and prays for a direction to the opposite party to complete the construction of the building in plot No. 4 with quality workmanship as per agreement dated 30-8-2002 or in the alternative to refund of Rs.7,35,000/- with 12% interest per annum from the date of complaint till realization, to pay Rs.2,00,000/- towards interest on the housing loan availed for making payment to the opposite party, and to pay Rs.50,000/- as compensation for mental and physical agony. The opposite party appeared and denied the allegation of the complainant they contented that the complaint was not maintainable as it is hit by the law of limitation as the building was handed over to the complainant on 26-9-2000. The opposite parties are also not liable to either to refund the sum of Rs.7,35,000/- with interest or to pay any other amount as compensation. There is neither deficiency in service nor any defects in construction nor any promise to hand over the title and possession of any new building to the complainant and the complaint may be dismissed with costs.

4. The evidence consists of the oral testimony of PW1 and PW2 and documents Exts. A1 to A11 to the complainant and examined the PW1 and PW2 of the witnesses. For the side of the opposite party and there is no document marked on their part.

5. The Forum below heard in detail in both sides and considered the entire evidence and found that a deficiency in service in the construction of the building. The Forum below found that there is a submerging of this high portion of the ground floor of the kitchen of the building. It is also noted that so many defects in the construction of the building the commissioner noted on his report on the building was constructed by the opposite parties in accordance with the standard specification. The witness DW1 is a commissioner who stated that there was no any finish in the kitchen and also noted that there is a water leakage from the bathroom on first floor of the building. Opposite party has neither objected to this in their objection to the commission report. According to the opposite parties in their objection to the commission report admitted that Rs.50,000/- is adequate to repair the defects mentioned in the commission report. But the Commissioner has stated in his deposition that this amount is not sufficient that the repair of the defects of the building and Rs.4,00,000/-as adequate for carry out the repair of the entire defects noted by him in the building. The Forum below considered this evidence and found that the gross negligence in the construction of the building carried out by the opposite parties. The Forum below also get over the question of maintainability under the specific allegation of question of limitation raised by the opposite parties. The Forum below taken a view that the gross of action was taking place on 30-4-2003 and the complaint was filed on 25-9-04. It is with in a stipulated period of 2 years. Hence this ground is not sustainable.

6. We heard in detail both parties and examine the entire evidence available in the case bundle. We are not seeing that there is a deficiency in service from the part of the opposite party and the complainant filed by the complaint with in the stipulated time. Hence there is no question of limitation is arised. We are not seeing any reason to interfere in the finding of the Forum below except the result portion of the order passed by the Forum below. The Forum below directed to the opposite party to refund Rs. 7,35,000/- with interest @ 9% Per annum from the date of filing the complaint and ordered the case of Rs.2,500/-. At the very same time, the Forum below did not passed any order to return the villa by the complainant to the opposite parties. The amount ordered by the Forum below is including the price of the land and the villa. The gross of action was arranged at the date of 30-4-2003 we do not think that nobody will return the villa to the land to the opposite party by accepting Rs.7,35,000/- with interest of 9%. Hear the Forum below passed the order without basic principles of law and evidence. The Forum below did not apply their commonsense in this redressal of this dispute. The Forum below ordered the entire price of building and villa to be repaid by the opposite party to the complainant with out an order to return the villa and land. It is irregular and illegal as set aside the order passed by the Forum below. We are not seeing that any appeal preferred by the complainant from this illegal order passed by the Forum below. Hear the question arised only an expense or cost of the rectification of the defects noted by the expert commissioner in the disputed building. If the complainant is ready to hand over the villa and plot on refund of an amout of Rs. 7,35,000/- as compensation, we are not interfering in the order of the Forum below. What is the purpose to pass these types of steriotype orders. With out apply the principle of balance of convenience. Hence this order is not legally sustainable and to set aside the impugned order. In the circumstance, we assessed the expense for the defect occurred in the construction of the building done by the opposite parties as Rs. 1,00,000/- we cannot accept blindly the entire assessment of the commissioner in this case.

In the result, the appeal is allowed in part we directed the opposite parties to pay Rs.1,00,000 as an expenses of the defect of the construction done by them in the impugned building with interest @ 9% interest from the date of order of the Forum below to the complainant along with a cost or Rs.1,500/- with 3 months from the date of receipt of the judgment. If the opposite parties will be failed to apply the order they are liable for the punishment for the imprisonment of 3 years and fine Rs.10,000/- as per sec 27 of the Consumer Protection Act. Both parties are directed to suffer their own respective costs. The points of the appeal discussed one by one accordingly.